Sh. Sushil Kumar vs Sh. Harbans Lal
2011 Latest Caselaw 1471 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.118/1997
%                                                  14th   March, 2011

SH. SUSHIL KUMAR                                        ...... Appellant
                              Through:       Mr. S.K.Gandhi, Adv.
                          VERSUS


SH. HARBANS LAL                                         ...... Respondent

Through: Mr. M.M.Kalra, Adv.

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 Nos. 4825/2010 & CM No. 4826/2010

There is no opposition to these applications which are accordingly

allowed and the appeal is restored to its original number.

CMs stand disposed of.

RFA No.118/1997

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 31.1.1997 whereby the suit of the plaintiff/respondent has been

partially decreed. The respondent/plaintiff has been granted the relief of

partitioning of the second floor of the subject/suit property situated at E-30,

Amar Colony, Lajpat Nagar-IV, New Delhi. The respondent/plaintiff was also

granted the relief of injunction restraining the appellant/defendant from

raising any further construction on the property.

2. The dispute centers around the property bearing no. E-30, Amar

Colony, Lajpat Nagar-IV, New Delhi between the parties who are brothers.

The respondent/plaintiff filed a suit and as per the plaint, the

respondent/plaintiff claimed that with respect to the subject property owned

by the parties an Award was passed by an Arbitrator in the year 1963 and

which Award was made a rule of the court by the court of Sub-Judge 1st

Class, Delhi vide order dated 18.3.63. As per the Award, the ground floor

portion was to belong to the appellant/defendant. The first floor was to be

jointly constructed by the parties and was to belong to the

respondent/plaintiff. There was nothing which was stated in the Award,

which was made a rule of the court, with respect to the second floor of the

property and above.

3. It is necessary at this stage to reproduce the Award which was made a

rule of the court, and which has been exhibited as Ex.PW1/1 in the trial court.

The same reads as under:-

"That the said plot in dispute measures 15ft by 60ft. Out of this Sh. Harbans Lal will have 15ft by 28.3" from the East side and he will have his entrance to his portion from the east side and Sh. Sushil Kumar will from the east side and Sh. Sushil Kumar will have 15 by 31.9" from the west side and he will have his entrance from the west side.

The price of the said plot is Rs.1350/- and out of this a sum of Rs.270/- has already been paid by both the parties equally, to the Govt. The remaining sum of Rs.1080/-shall

be paid by both parties in equal shares at the cost of both parties.

That the first floor may be built over the said plot only by mutual consent of both parties in writing, and in case of the first floor being built, Sh. Harbans Lal will shift to the first floor and Sh. Sushil Kumar will exclusively occupy the ground floor.

That Sh. Sushil Kumar will pay to the Govt. all dues in respect of Qr. No.5/9 Purana Qila New Delhi, which he is residing at present.

That either party may transfer, mortgage or let out his portion or deal in any manner he likes with respect to his share in plot.

The parties to this reference shall bear their own costs. In witness where of I the said Dr. Tirath Ram have hereto signed this 4th day March 1963.

Sd/Tirath Ram

Arbitrator

Sd/Rs Tirath Ram Gupta."

The respondent/plaintiff in the suit therefore prayed that the Award

which became rule of the court was required to be implemented. It was also

prayed that the appellant/defendant was not the sole owner of the second

floor of the property which thus ought to be partitioned.

4. Before proceeding to deal with the arguments as raised by the counsel

for the parties, I must at this stage straightway put on record the fact that

the counsel for the appellant has argued that the plaint as filed by the

respondent/plaintiff can be decreed as a whole i.e., the plaintiff be granted

his rights in terms of the 1963 Award and also partitioning of the second

floor of the property. The counsel for the appellant argued that surely the

plaintiff cannot ask for anything more than what is prayed for in the plaint,

and that the appellant/defendant concedes to the reliefs being asked for in

the plaint with respect to implementation of the 1963 Award and also of

partitioning of the second floor. It has been argued that this court can take

notice of the arguments now raised on behalf of the appellant in terms of

Order XLI Rule 33 of the CPC and which reads as under:-

" 33. Power of Court of Appeal--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [ and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:

[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]"

5. Before the trial court, the appellant/defendant however had contended

differently. It was contended that the respondent/plaintiff had earlier filed

for execution of the Award which was made rule of the court and which

execution had been dismissed as time barred. It was therefore, argued that

no rights could be claimed by filing of the suit under the Award which though

was made rule of the court, however, the execution of which could not now

be permitted, having become time-barred.

So far as the second floor is concerned, it was contended on behalf of

the appellant that though under the Award, the appellant/defendant was

held entitled to the ground floor, but, when the first floor was constructed, by

mutual agreement, the appellant/defendant shifted to the first floor as it was

agreed between the parties, that the appellant/defendant would have the

portion of the first floor and above and the respondent/plaintiff would have

the proportionately valuable ground floor. This position of the appellant

getting the first floor and above and the respondent getting the ground floor

was, therefore, a changed position than as envisaged in the 1963 Award.

6. The trial court after the pleadings were complete, framed the following

issues.

"6. On the pleadings of parties, the following issues were framed on 7.7.88 by my ld. predecessors:-

Issues.

1. Whether the suit of the plaintiff is barred under Sec.34 of Specific Relief Act as alleged by the deft. in preliminary objections No.2 & 4 of W.S.? OPD

2. Whether the suit of the plaintiff is barred on account of latches, delays and also on account of doctrine of favour and acquience as alleged by the deft. in para 6 & 7 of preliminary objection of W.S.? OPD

3. Whether this court has no pecuniary jurisdiction to try this suit as alleged by the deft. in para 12 of preliminary objection of W.S.?OPD

4. Whether there is no cause of action in favour of plaintiff to file the present suit as alleged by the deft?OPD

5. Whether the partition has already been taken place between the parties as alleged by the deft. in the W.S.?OPD

6. Whether the plaintiff has the right to use and occupy and own first and second floor of the premises in dispute on the terms of Award of settlement made in the year 1963?

7. Whether the plaintiff is entitled to restrain the deft. raising further construction at the first and second floor of the premises ?OPP

8. Whether the plaintiff is entitled to decree of declaration and injunction as prayed? OPP

9. Relief."

7. The trial court by the impugned judgment and decree has held that the

respondent/ plaintiff cannot take benefit of an Award which has become rule

of the court since the execution of the same had become time barred. The

trial court has also held that the suit was maintainable and not barred under

Section 34 of the Specific Relief Act, 1963. The trial court, while dealing with

the issue no.2 held the suit not to be barred on account of delay and laches.

Basically while dealing with other issues, the trial court has granted the relief

of partition of the second floor to the respondent/plaintiff and issued

injunction against the appellant/defendant preventing him from raising any

construction in the property.

8. I have already stated above, the argument in this appeal as raised by

the learned counsel for the appellant. I agree with the counsel for the

appellant that the respondent/plaintiff can at the very best get only 100% of

what he claimed in the plaint and nothing more. The appellant/defendant is

definitely entitled to argue that the suit should be decreed as prayed for and

nothing more than what the plaintiff has prayed for should be granted to the

respondent/plaintiff. At this stage, I may also deal with the argument as

raised by the learned counsel for the respondent that the appellant has not

framed any such ground in the memorandum of appeal. To this, I may only

state that Order 41 Rule 2 itself permits the appellant to raise additional

grounds with the leave of the Court, and considering the facts and

circumstances of the present case, as also the provision of Order 41 Rule 33,

I allow the appellant/defendant to raise the ground argued because the plea

is nothing except conceding to the giving of the reliefs in the plaint as asked

for by the respondent/plaintiff.

9. The learned counsel for the respondent/plaintiff argued that the

respondent/plaintiff is entitled to partition of the whole property. I find this

argument to be totally misconceived inasmuch as the respondent/plaintiff

only claimed for implementation of the 1963 Award. As per the 1963 Award,

the property was not to be partitioned as a whole but the ground floor

portion was to go to the appellant/defendant and the first floor portion to the

respondent/plaintiff. Therefore, there is no question of partitioning so far as

the ground and the first floor is concerned, which have to go specifically to

each of the parties as envisaged in the Award. Partition is only to be granted

with respect to the second floor and any portion above thereof as the Award

did not deal with the portion of 2nd floor and above with respect to the suit

property. I, therefore, reject the argument of the counsel for the

respondent/plaintiff that property as a whole has to be partitioned.

10. At this stage, in order to appreciate the arguments of the learned

counsel for the appellant, it is necessary to reproduce paras 7,12,13 and 20

of the plaint which read as under:-

"7. That even after making the Award to be the rule of the court, the parties continued to live on the ground floor of the premises by occupying the portion as stated Clause 1 of the Award. However, as agreed between the plaintiff and the defendant in accordance with the terms of the Award having the legal force of a decree, the parties raised construction on

the first floor on premises No.E-30, Amar Colony, Lajpat Nagar, IV, New Delhi in the year 1974 with mutual consent. The construction on the first floor was raised by the plaintiff and defendant by spending amount in equal. However, the defendant also raised construction on the second floor, as shown green in the plant attached, out of his own expense without the consent of the plaintiff. The plaintiff also raised construction of a room on the ground floor marked „X‟ as shown red in the plan attached in the month of December 1974 at his own cost. It is submitted that in accordance with the direction of the Award, which has since been made the rule of the court, the first floor as well as second floor was to come into the physical actual possession of the plaintiff but after construction having been raised, the defendant illegally and unlawful and without the consent of the plaintiff, occupied the entire first floor and second floor and shift his residence to the first and second floors of the premises. The plaintiff raised his objections to the said act of the defendant but the defendant being an influential person did not care for the right of the plaintiff and continued to occupy the first and second floors. Thus in this way, the plaintiff came into the exclusive possession of the ground floor of the premises and the defendant also occupied the first floor and second floor from 14.4.1974 though all the parties are in joint possession being the co-owners of the property.

12. That the plaintiff has even made representations to the members of the biradari in writing asking them to exercise their influence in making the defendant to act upon the terms of the Award but the members of the biradari have refused to do so and the plaintiff has, therefore, no option but to approach this Hon‟ble Court.

13. That the defendant has refused to recognise the right of the plaintiff to occupy the first and second floor of the premises and the plaintiff seeks a decree of declaration from this Hon‟ble Court declaring that the Award which has since been made the rule of the court is still binding on the parties and the defendant is liable to deliver the possession of first and second floor of the premises for the use of plaintiff and his family members exclusively. In case it is held by Hon‟ble Court that the property No.E-30, Amar Colony, Lajpat Nagar, New Delhi has not yet been partitioned, it is claimed by the plaintiff in alternate that the property be ordered to be partitioned by metes and bounds in two equal shares by dividing the property from ground floor, to second floor in two equal shares.

20. It is, therefore, prayed that this Hon‟ble Court may be pleased to pass the following:-

a) A decree for declaration declaring that the Award in suit No.169/63 is valid and binding on the parties and that the plaintiff is entitled to use and occupy the first and second floor or premises No.E-30, Amar Colony, Lajpat Nagar-IV, New Delhi and consequential relief directing the defendant not to interfere into the possession of the plaintiff in respect of first and second floor of the premises.

b) A decree for partition in the alternate be passed by dividing the property into two equal shares amongst plaintiff and the defendant by allocating the portion of ground floor, first floor and second floor.

c) A decree for permanent injunction be passed in favour of the plaintiff and against the defendant restraining the defendant from raising any construction on the first floor or second floor or carrying any additional alternations in premises No.E-30, Amar Colony, Lajpat Nagar, -IV, New Delhi and from causing any interference in any manner in the water tank affixed at point ‟X‟ and from removing the water tank or any other things from the property.

         d)       Cost of the suit be decreed with costs.
         e)       Any other relief which this Hon‟ble Court deems fit

and proper under the circumstances of the case be also granted to the plaintiff."(underlining added)

11. A reading of the aforesaid paragraphs of the plaint including the

relief/prayer clauses leaves no manner of doubt that the suit was for

enforcement of the 1963 Award. The Award however only pertains to the

ground floor and first floor of the subject property since the second floor and

above was not the subject matter of the 1963 Award.

12. The learned counsel for the respondent/plaintiff argued that before

shifting to the first floor, the respondent/plaintiff had made construction of

one room on the ground floor and the respondent/plaintiff is entitled to cost

of the construction of this room from the appellant/defendant. In my opinion,

this is really a case of much ado about nothing inasmuch as the Award does

not state that when the respondent/plaintiff will shift to the first floor, if he

has made any construction on the ground floor, he will be entitled to cost of

any construction made on the ground floor from the appellant/defendant. In

fact, it is inequitable for the respondent/plaintiff to ask for cost of the room

which he constructed on the ground floor, which in any case is not of a very

large amount, from the appellant/defendant, because, the

appellant/defendant has contributed 50% of the cost of the construction of

the first floor and which has been taken into use by the respondent/plaintiff

all these years. In any case, this issue need not be dealt with at length by

me because learned counsel for the appellant agrees that whatever is the

cost of this room would be given by the appellant/defendant to the

respondent/plaintiff, and which issue can be determined in the proceedings

to be held pursuant to the preliminary decree directing partitioning of the 2nd

floor and in the final decree proceedings which will take place in the trial

court.

13. In view of the aforesaid, the appeal is accepted. The suit of the

respondent/plaintiff will stand decreed by holding that the

respondent/plaintiff is entitled to benefits of the 1963 Award which has

become rule of the court. In terms of the 1963 Award, the

appellant/defendant will be entitled to the ground floor of the suit property

and the respondent/plaintiff will be entitled to the first floor of the suit

property bearing no. E-30, Amar Colony, Lajpat Nagar-IV, New Delhi. The

parties are directed to handover actual physical possession of the respective

floors to each other within a period of three months from today and, this

date can be fixed by any of the parties by moving an application before the

trial court. A preliminary decree is also passed declaring the

appellant/defendant and the respondent/plaintiff as having 50% ownership

share each in the second floor and above of the subject property. In the

proceedings hereafter, and when a final decree is being passed, the same

will also incorporate the cost of construction of one room which has been

made by the respondent/plaintiff on the ground floor, and which cost of

construction of the room would be paid by the appellant/defendant to the

respondent/plaintiff in terms of the final decree. The appellant/defendant will

also be entitled to adjustment of the cost incurred by him for construction of

part of the second floor in the final decree proceedings in the trial court.

Parties to appear before the trial court for taking further steps qua the final

decree proceedings on 27th April, 2011.

Interim orders will stand merged with this judgment. The appeal is

accordingly disposed of. Decree sheet be prepared. Trial court record be

sent back.

MARCH 14, 2011                                           VALMIKI J. MEHTA, J.
ib