Delhi High Court
Sh.Amit Chandra vs Sh.K.Chandra on 3 May, 2011
Author: Indermeet Kaur
R-262
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 03.5.2011
+ R.S.A.No.176/2007
SH.AMIT CHANDRA ...........Appellant
Through: Ms.Suman Chauhan,
Advocate.
Versus
SH.K.CHANDRA ..........Respondent
Through: Ms.Anju Jain, 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.
1. This appeal has impugned the judgment and decree dated
24.5.2007 which had endorsed the finding of the trial judge
dated 24.3.2005 whereby the suit filed by the plaintiff
K.Chandra seeking possession of the suit property i.e. the
property bearing No.498-B/6, Govindpuri, Kalkaji, New Delhi
RSA No.176/2007 Page 1 of
had been decreed in his favaour.
2. The facts as is evident from the pleadings is that Sheela
Dixit, the deceased second wife of the plaintiff was the owner of
the aforenoted suit property. She had purchased a plot and
raised construction upon it. Defendant no.1 who is the son of
the plaintiff was borne out of his first marriage; he was in need
of a place for shelter. Plaintiff allowed defendant no.1 and his
wife to occupy one room and a kitchen on the first floor of the
aforenoted property on a licence basis without any charges.
After the marriage of their second son there was a paucity of
accommodation and thus the plaintiff requested the defendants
to vacate the portion which was in their occupation but the
defendants with ulterior motive started threatening the plaintiff.
Plaintiff was compelled to issue legal notice dated 19.01.1995
but to no avail. Present suit was accordingly filed.
3. Defendant contested the suit. It was denied that Sheela
Saxena was the owner of the aforenoted suit property. It was
stated that in 1959, the plaintiff had married Kanti Saxena
(natural mother of defendant no.1); three children were borne
out of the said wedlock including defendant no.1. Income of the
plaintiff was not sufficient to run the family; their mother took
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up employment as a teacher. After her death plaintiff married
Sheela Saxena in 1972 which was against the wishes of the
defendant no.1 and his other two brothers. In early 1974 this
plot was purchased by the plaintiff out of his own funds and
funds of their mother upon which the construction was raised.
Defendant no.1 had also contributed towards the construction of
the house in question ; defendant no.1 was turned out of the
house in the year 1979 and he was forced to seek shelter at
Kanpur in his paternal uncle's house. Thereafter defendant no.1
fell ill; he returned back to Delhi. In 1980 defendant no.1 took
up employment and helped the plaintiff in running the family
and for construction of the house in question; the construction
on the ground floor was completed in 1985 and the family
shifted in the suit property after leaving rented accommodation
in Lajpat Nagar. After the marriage of defendant no.1 with
defendant no.2 (which was in 1988) since the two room
accommodation was falling short two rooms were constructed
on the first floor along with one kitchen and one bathroom and
latrine. Construction on the first floor was completed in 1993
wherein defendants no.1 and 2 shifted along with their two
brothers. The house in question is thus a joint Hindu Family
RSA No.176/2007 Page 3 of
and the defendant cannot be asked to vacate the suit property.
4. On the pleadings of the parties the following four issues
had been framed:
1. Whether the suit property is subject matter of joint Hindu family
property and plaintiff cannot in law ask the defendants to vacate
the house, as stated in para 3.4 at page no.8 of written statement
of defendant no.1 & 2? OPP
2.Whether the suit has been properly valued for the purpose of
Court fees and jurisdiction? OPP
3.Whether the plaintiff is entitled to decree of possession as
prayed? OPP
4.Relief.
5. Oral and documentary evidence was led. The court was of
the view that the suit property is owned by the plaintiff;
defendant was only a licencee; he was liable to be evicted from
the suit property.
6. This finding was endorsed in first appeal.
7. This is a second appeal. It has been admitted and on
27.8.2007, the following substantial question of law was
formulated:
"Whether the trial court was justified in basing its decision on
the Will left by the second wife of respondent in the absence of
the said Will being filed, pleaded, relied upon or proved in
accordance with law?"
RSA No.176/2007 Page 4 of
8. On behalf of the appellant, it has been urged that the
impugned judgment is a perversity as testimony of PW-1 has not
been considered. It is pointed out that PW-1 in his cross-
examination had admitted that at the time of his retirement his
pension was Rs.500/- per month; his first wife Kanti Saxena was
a teacher; she had died in December 1971. PW-1 had admitted
that he had taken her retirement benefits. It was from this
retiremental benefits of the mother of the defendant that the
aforenoted suit property had been constructed. Attention has
been drawn to the various amendments which had been effected
of the plaint; it is pointed out that the plaint was initially filed in
1995; thereafter an amendment of the plaint had been effected
in May 1995; a second amendment had again been permitted in
2001; it is pointed out that the plaintiff was sure about the
origin of the suit property. He was not clear whether this
property had been owned by him individually or jointly with
Sheela Saxena. These facts have not been appreciated in the
correct perspective.
9. Arguments have been rebutted. It is pointed out that the
impugned judgment calls for no interference.
10. This is a second appeal. Interference, in findings of fact
RSA No.176/2007 Page 5 of
unless perverse, is not permitted. Both the two facts finding
courts had appreciated the oral and documentary evidence and
had held that the defendant had failed to show that he had in
any manner contributed to the funds for the construction of the
suit property. He had led no evidence on this score. Admittedly
the suit property is in the name of Sheela Saxena who had died
in the year 1997; she had left will dated 18.1.1996 by way of
which she had bequeathed this property in the name of plaintiff
no.1 i.e. her husband.
11. It is relevant to stated that an application under Order 22
Rule 2 of the Code had also been filed by the plaintiff no.1
along with a copy of the will seeking permission to be arrayed as
the legal representative of his deceased wife Sheela Saxena. In
the reply filed to the aforenoted application the defendant did
not dispute the will. The application was allowed vide order
dated 08.4.1999. Today before this court it has been urged that
the will has not been proved in accordance with law. A
document which is not disputed and, in fact, admitted need not
to be proved. The attesting witness to the will PW-2 Ghanshyam
and PW-3 Dr.P.L.Khanna had also been examined. PW-3 had
deposed that the deceased had executed the will in his
RSA No.176/2007 Page 6 of
presence. He had identified his signatures at point C and that
of Sheela Saxena at point C.
12. The impugned judgment on no count calls for any
interference. Substantial question of law is answered in favour
of the respondent and against the appellant. There is no merit in
the appeal. Dismissed.
INDERMEET KAUR, J.
MAY 03, 2011
nandan
RSA No.176/2007 Page 7 of
