Sushila Devi vs Than Singh
2012 Latest Caselaw 2638 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision : 23rd April, 2012

+                          RFA(OS) 75/2010

       SUSHILA DEVI                              ..... Appellant
           Represented by: Mr.J.K.Jain, Advocate.


                           versus

       THAN SINGH                           ..... Respondent
           Represented by: Mr.S.S.Gautam, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

PRADEEP NANDRAJOG, J. (Oral)

1. Ratan Singh, Jagjoyti Jain and Gulshan Jain were admittedly the co-owners of 2 bigha and 8 biswa land compromised in khasra No. 1/18, 19, 22/1-2 and 23 in village Nangloi Jat. Admittedly, vide registered sale deed dated May 16, 1972, Ratan Singh sold his undivided share in the land in favour of the remaining two co-owners i.e. Jagjoyti Jain and Gulshan Jain. Undisputedly, vide sale deed dated March 13, 1984 (Ex.P-1) Jagjoyti Jain and Gulshan Jain sold the land to Than Singh and Sanjay Kumar, both sons of late Sh.Ishwar Singh. Further, admittedly Sanjay Kumar died issueless and during his lifetime had filed Suit No.3818/1990 against the appellant praying that sale deed, Ex.DW-1/1 dated June 29, 1990 be declared null and void, alleging that the appellant had tricked him into executing the sale deed when he was a minor, which suit was dismissed in default and was never restored.

2. With the aforesaid admitted facts, it be noted that respondent No.1, Than Singh, as sole plaintiff, sued for recovery of possession of the 2 bigha and 8 biswa land alleging that on the death of his brother, Sanjay Kumar who died issueless, he became the owner of the entire land. He alleged that appellant and her husband had trespassed into the property. He sought damages at `40,000/- per month. The defendants in the suit were, the appellant Sushila Devi and her husband Ramphal.

3. In the written statement filed, Sushila Devi pleaded the bar of Order 9 Rule 9, CPC hitting the suit inasmuch as she pleaded that Than Singh was maintaining the action as the successor in interest of his brother Sanjay Kumar. On merits she pleaded title to the suit property on the strength of the sale deed Ex. DW-1/1. She also pleaded that apart from Than Singh, Sanjay Kumar had a brother Sham Lal and a sister Asha, for non-impleadment of whom she took the plea that the suit was liable to be dismissed on account of non-joinder of necessary parties.

4. As recorded in the order dated May 08, 2000, learned counsel for the appellant and her husband made a statement that Sanjay Kumar was admittedly a minor when the sale deed Ex.DW-1/1 was executed and when Sanjay Kumar filed Suit No.3818/1990.

5. Apparently, for the reason the appellant and her husband admitted that Sanjay Kumar was a minor when he executed the sale deed Ex.DW-1/1 an issue was not settled between the parties as to the effect of the plaintiff not challenging the sale deed Ex.DW-1/1.

6. Notwithstanding the fact that in view of the plea

taken in the written statement filed by the appellant to the non-impleadment of Sham Lal and Asha, the other brother and the sister of Sanjay Kumar, and Than Singh having taken remedial action by impleading said two person, Sham Lal as co-plaintiff and Asha as a defendant, vide order dated August 17, 2001, six issues were settled as under:-

1. Whether the present suit is barred under Order IX Rule 9 Code of Civil Procedure?

2. Whether the present suit is not maintainable?

3. Whether the suit is bad for mis-joinder and non- joinder of necessary parties?

4. Whether the plaintiff is entitled to the decree for specific performance and damages? If so for how much amount?

5. Whether this Court has no jurisdiction to entertain the suit?

6. Relief.

7. A word needs to be spoken, on issue No.3, and indeed we find that in every suit, where a plea of non-joinder or mis-joinder is raised in the written statement filed, the language of the issue settled is: Whether the suit is bad for mis-joinder and/or non-joinder of a necessary party.

8. A suit cannot be good or bad. It is not a document to be appreciated in its esthetic beauty. A plaint is a written document setting forth the claim by a party and thus the action would be tested, firstly with reference to its maintainability and secondly with respect to its sustainability. While framing issues, with respect to joinder or non-joinder of parties, the same has to be settled with reference to the suit being maintainable, and if not, the plaint being liable to be

rejected, for the reason Order 1 Rule 9 of the Code mandates that no suit shall be defeated by reason of mis-joinder or non- joinder of parties, save and except on the non-joinder of a necessary party. Thus, the correct language of the issue has to be: Whether the plaint is liable to be rejected on account of non-joinder of a necessary party.

9. If the issue pertains to mis-joinder, the issue to be settled cannot be with reference to the suit being good or bad or with reference to the plaint being liable to be rejected. The issue has to be settled with reference to the mis-joinder of the party concerned and the effect thereof i.e. the language of the final decree which would finally follow.

10. We have taken a little detour, so that future can be benefitted.

11. That apart, in the instant case, the issue seems to have been settled with reference to the pleadings of the appellant and her husband in the joint written statement filed, ignoring that by the time the issues were settled, the other brother and the sister of Sanjay had been impleaded, one as a co-plaintiff and the other as a defendant.

12. It is apparent that the learned Single Judge has held that issue No.3 was a non-issue.

13. Issue No.1, 2 and 5 have been decided together and suffice would it be to state, as rightly noted by the learned Single Judge, that on what account issue No.2 was settled was not forthcoming. In respect of issue No.2, we would again like to make a detour. The issue has been settled with reference to preliminary objection No.1 wherein it is pleaded that the suit is not maintainable. On what reason, of fact or of law, the suit was not maintainable has not been pleaded. Suffice would it

be to state that on vague pleadings issues have not to be settled.

14. With reference to issue No.5, on the jurisdiction of this Court, the issue was settled on the defence taken that being governed by the Delhi Land Reforms Act 1954, suit for possession was barred in view of Section 185 of the Delhi Land Reforms Act 1954 since possession could be got recovered by way of a suit instituted before the Revenue Assistant. No evidence being led that the suit land was governed by the Delhi Land Reforms Act 1954, the decision is against the appellant and needless to state the common discussion pertaining to issue No.1, 2 and 5 relates to issue No.1 i.e. the suit being barred under Order IX Rule 9 of the Code.

15. The learned Single Judge has correctly noted Sub- Section (2) of Section 2 of the Code, wherein while defining a decree, an order dismissing a suit for default has been expressly excluded. The learned Single Judge has correctly opined that dismissal of a suit for non-prosecution does not amount to a decree.

16. We may supplement the reasoning of the learned Single Judge by adding that dismissal of a suit in default precludes the institution of a fresh suit in respect of the same cause of action. The suit filed by Sanjay Kumar was laying a challenge to the sale deed dated June 29, 1990, which sale deed admittedly pertains to only 1 bigha and 4 biswa land and suffice would it be to state that the sale deed does not delineate or throw any light as to what was the location of the 1 bigha and 4 biswa land statedly sold to the appellant from out of the 2 bigha and 8 biswa land jointly owned by Sanjay Kumar and Than Singh. Further, as admitted by the appellant

and as recorded in the order dated May 08, 2000, not only was Sanjay Kumar a minor when he executed the sale deed, he was a minor even when he filed Suit No.3810/1990; and hence the suit itself was a nullity since no minor can sue by himself. Of course, with the leave of the Court, a next friend of a minor can institute the suit in the name of the minor and hence the dismissal in default of said suit is a fact which has to be ignored.

17. The instant suit was seeking possession of the entire 2 bigha and 8 biswa land.

18. From the averments made in the plaint, refer para 1, 6 and 9, it is apparent that the claim in the suit pertains to 2 bigha and 8 biswa land. In the written statement filed, it is not the case of the appellant that she is occupying only 1 bigha and 4 biswa land, though she claims to have purchased only 1 bigha and 4 biswa land. She has staked entitlement to the entire land. She pleads in the written statement that she is in lawful possession of the suit property as owner.

19. Thus, it was only issue No.4 which needs further consideration by us, and suffice would it be to state that since counsel for the appellant admitted, as recorded in the order dated May 08, 2000 that Sanjay Kumar was a minor when he executed the sale deed dated June 29, 1990 and was also a minor when he instituted Suit No.3818/1990, and this is the reason why no issue was settled on the legality of the sale deed Ex.DW-1/1, for the obvious reason a sale deed executed by a minor is void and non-est in the eyes of law; the appellant having admitted title of Than Singh and Sanjay, was thus left with no defence since the suit claimed possession on the strength of title. The appellant could not have in any case

resisted the suit with respect to 1 bigha and 4 biswa land inasmuch as she claimed possession under title on the strength of Ex.DW-1/1 and strangely enough in spite of DW-1/1 pertaining to only 1 bigha and 4 biswa land, appellant, by vague and laconic pleadings opposed claim in the suit pertaining to the entire 2 bigha and 8 biswa land.

20. We concur with the view taken by the learned Single Judge that transactions by minors cannot create interest in immovable property and the conclusion arrived at: that the claim for possession must succeed.

21. The impugned judgment does not advert to any damages, an issue which is an integral part of issue No.4, probably for the reason no evidence was led to prove the prevalent rent in the area.

22. Now, a property in Delhi would certainly fetch some rent, but we need not bother ourselves to trouble ourselves to opine as to what could be the probable rent which could be taken as the basis to determine mesne profits, for the reason the respondents have not preferred any cross-objections.

23. The appeal is dismissed, but we refrain from imposing costs.

PRADEEP NANDRAJOG, J.

SIDDHARTH MRIDUL, J.

APRIL 23, 2012 KA/DK