Smt. Shashi Bala vs Shri Rakesh Kumar & Anr.
2011 Latest Caselaw 2797 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Judgment : 25.05.2011

+            R.S.A.No. 240/2008

SMT. SHASHI BALA                                 ...........Appellant
                         Through:     Mr.T. N. Saxena and Mr. Vipin
                                      K. Saxena, Advocates.

                   Versus

SHRI RAKESH KUMAR & ANR.                         ..........Respondents
                 Through:             Mr. V Shukla and Ms. Aparna,
                                      Advocates.

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. (Oral)

1. This appeal has impugned the judgment and decree dated

13.08.2008, which has reversed the finding of the Trial Court

Judge dated 31.5.2007. Vide decree and judgment dated

31.5.2007, suit filed by Rakesh Kumar seeking possession of the

suit property (Municipal No.559-560, Jain Mandir Gali, Chhota

Bazar, Shahdara, Delhi) had been dismissed; the impugned

judgment had reversed this finding; suit of the plaintiff was

decreed.

2. The plaintiffs Rakesh Kumar and Mukesh Kumar are the

sons of Madan Mohan; the defendant Shashi Bala is the wife of

Ashok, predeceased son of Madan Mohan. The case of the

plaintiff was bordered on the Will of their father Madan Mohan

dated 4.7.1997 (Ex.PW3/1); contention was that Madan Mohan

had bequeathed the aforenoted suit property to him by virtue of a

Will dated 4.7.1997. The defence of the defendant all along was

that this suit property is an ancestral property and it could not

have been bequeathed by Madan Mohan; the defendant being the

daughter in law of Madan Mohan, she after the death of her

husband Ashok had a right in the ancestral property. The

defendant had placed reliance upon an earlier judgment rendered

between parties i.e. judgment dated 27.9.1999 wherein an

application under Order 7 Rule 11 of the Code of Civil Procedure

had been allowed and the suit filed by the plaintiff Shashi Bala

had been dismissed. This order dated 28.7.1999 had emanated

from a suit which had been filed by Shashi Bala against Madan

Mohan; this was the suit for injunction; a contention of Shashi

Bala was that the suit property was an ancestral property and

jointly owned by all the parties including Shashi Bala, who was a

co-sharer; on these averments, application under Order 7 Rule 11

of the Code had been filed by the defendant; the averments made

in the said application (page 149 of paper book) have been

perused; and plaintiff has clearly averred that the subject matter

of the suit is an ancestral property; relying upon a judgment of the

Punjab and Haryana High Court reported in AIR 1987 Punjab and

Haryana 34 (Jujhar Singh Vs. Giant, Talok Singh) the court had

dismissed the suit of the plaintiff on the ground that the proper

remedy in such a case would be to seek partition with respect to

the subject matter of the suit instead of asking for injunction. Suit

had been dismissed. It is these pleadings in this suit which have

been heavily relied upon by the appellant to support his

submission that the case of the plaintiff himself was that this suit

is ancestral property and now he cannot go back on this

submission; to support this submission he has relied upon the

averments made by Rakesh Kumar in this application under Order

7 Rule 11 of the Code. Perusal of this application shows that no

such averment had been made by Rakesh Kumar (present

plaintiff); he had sought dismissal of the suit under Order 7 Rule

11 of the Code only on the submissions made by the plaintiff in

her plaint. The plaintiff therein (Shashi Bala) had herself

contended that this suit property is ancestral property and co-

joined by all the parties; this submission of the learned counsel for

the appellant is thus devoid of any force. Record does not

substantiate his submission that the plaintiff had ever averred that

the suit property is ancestral property.

3. In fact, it is not in dispute that this suit property was

originally owned by Kali Charan. This is also clear from the

averments made in the plaint to which there is no denial in the

corresponding para of the written statement. Kali Charan was not

the natural father of Madan Mohan; out of love and affection he

had bequeathed this property vide will dated 22.3.1951 to Madan

Mohan. Madan Mohan vide registered Will dated 4.7.1997 had

thereupon bequeathed this property to the plaintiffs Rakesh

Kumar and Mukesh Kumar, his two sons; this will had been

proved in the court below; attesting witness PW3 had come into

the witness box to substantiate this document. The defence of the

defendant all along was that the suit property was ancestral

property which could not have been bequeathed by Madan

Mohan. This submission of the defendant/appellant is not borne

out. Neither in the application under Order 7 Rule 11 of the Code

was this ever averred by the plaintiff and neither was this

supported by the defendant. Thus, the suit property not being

ancestral property and the will (Ex.PW4/1) of deceased Madan

Mohan having been adequately proved, it is clear that the

defendant had no right or title in the suit property; she was

residing there only with the permission of the plaintiff; her status

was that of an unauthorized occupant; she had no right, title in

the suit property. The impugned judgment had correctly returned

thus finding in favour of the plaintiffs; they were entitled to the

decree for possession and damages at Rs.100 p.m., Rs.150 p.m. as

electricity charges and Rs.250 p.m. as water charges w.e.f.

January, 2000 till delivery of possession.

4. Appeal has been admitted and on 11.11.2009 the substantial

question of law had been formulated by this Court :

1. Whether the Appellate Court properly appreciated the evidence of the parties, while accepting the validity of the Will dated 4th July, 1997, or its findings are perverse?

2. Did Madan Mohan Lal had the right to bequeath the entire property which, as per his own admission in the earlier suit, was an ancestral property to the exclusion of the appellant?

5. Judgment relied upon by the plaintiff reported in AIR 1973

Supreme Court 2384, is an undisputed proposition; there is no

dispute that the dismissal of the application under Order 7 Rule

11 of the Code amounts to a "decree" under Section 2(2) of the

Code.

6. Substantial question of law is accordingly answered in

favour of the respondent and against the appellant. There is no

merit in this appeal. Dismissed.

INDERMEET KAUR, J.

MAY 25, 2011 vld