Delhi High Court

Shahid Khalil vs Zahid Khalil & Ors. on 28 February, 2012

Author: A. K. Pathak

      IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 1036/1998
*
                                     Reserved on: 14th February, 2012
                                      Decided on: 28th February, 2012
SHAHID KHALIL                                   ..........PLAINITFF
                           Through:      Mr. Raman Kapur, Sr. Adv.
                                         with Mr. Aviral Tiwari and
                                         Mr. R.P. Singh, Advs.
                           Versus
ZAHID KHALIL & ORS.                          ...........DEFENDANTS

                           Through:      Mr. Rajeev Saxena and Mr.
                                         Rajat Mittal, Advs. for D-2.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. Plaintiff has filed this suit for declaration, partition, rendition

of accounts and permanent injunction against the defendants.

2. Defendant nos. 1 and 2 are step brothers of plaintiff.

Disputes between the parties relate to property bearing no. C-47 and

C-48, Jangpura (B), New Delhi (hereinafter referred to as "suit

property"). As per the registered sale deed dated 3rd March, 1964,

the suit property stands in the name of Shahid Khalil and Zahid

Khalil. Shahid Khalil and Zahid Khalil are the joint owners of the

suit property by virtue of the aforementioned sale deed. Defendant

no. 3 is a tenant in the suit property.

3. Case of the plaintiff, as set out in the plaint, is that he along

with defendant no. 1 is joint owner of the suit property. Defendant

no. 2, in order to grab the suit property, started asserting that he was

also known as Shahid Khalil and that the suit property is jointly

owned by him and his brother, defendant no. 1. Father of the

plaintiff, under the influence of his second wife, also joined

defendants no.1 and 2 in claiming that the suit property belonged to

defendant nos. 1 and 2. In order to achieve their this objective,

defendant nos. 1 and 2 filed a Civil Suit No. 1475/1991 in the court

of Sub Judge, Delhi against defendant no. 3. The said suit was filed

by defendant no. 2 as "Shahid Khalil". When plaintiff came to

know about this fact, he filed an application for his impleadment in

the said suit on the ground that he was the joint owner of the suit

property. However, learned Sub Judge, vide order dated 10th

March, 1998, held that the suit being against the tenant (defendant

no.3) could not have been converted into a partition suit,

consequently, his application was dismissed. In view of ill designs

of defendant nos. 1 and 2, in collusion with their father, to grab the

property, plaintiff was compelled to file the present suit seeking

declaration that he, being "Shahid Khalil", was the joint owner of

the suit property along with defendant no.1, "Zahid Khalil", as also

to seek partition of the suit property besides permanent injunction

against the defendants that they shall not interfere in plaintiff‟s

peaceful enjoyment of the suit property as also a decree of rendition

of accounts in respect of the rents realized from defendant no. 3.

4. Defendant nos. 1 and 2 have filed a composite written

statement; whereas defendant no. 3 has filed separate written

statement. In their written statement, defendant nos. 1 and 2 have

claimed that the plaintiff had no locus standi to file the present suit

as he was not having any right, title or interest in the suit property

and that the plaintiff had not come to Court with clean hands.

Defendant nos. 1 and 2 claim that the suit property was purchased

by their maternal grandmother, namely Smt. Musharaf Jahan

Begum, in the name of defendant nos. 1 and 2. Their maternal

grandmother used to call Hamid Khalil (defendant no. 2) as "Shahid

Khalil". Plaintiff was never in possession of the suit property nor

did he deal with the same in any manner whatsoever. Suit property

was being maintained by defendant no. 2 in association with

defendant no. 1. It was denied that defendant nos. 1 and 2, in

conspiracy with their father, tried to grab the suit property. It was

asserted that the property was purchased in the name of defendant

nos. 1 and 2 by their maternal grandmother Smt. Musharaf Jahan

Begum. Thus, they were joint owners of the suit property.

5. Defendant no.3, in his written statement, admitted that he was

occupying the suit property as a tenant. It was alleged that

defendant no. 2 never dealt with defendant no. 3 with regard to suit

property. It is only defendant no. 1, who had been approaching the

defendant no. 3 for collecting the rent. It was stated that in the civil

suit defendant no. 1 did not disclose that defendant no. 2 was also

known as "Shahid Khalil". As per defendant no. 3, after the

disposal of application of the plaintiff, he had filed Civil Revision

Petition in the High Court, which was pending.

6. Plaintiff has filed replication(s) to the written statement(s)

wherein he denied the allegations in the written statement. It was

denied that defendant no. 2 was also known as Shahid Khalil. It

was reiterated that the plaintiff and defendant no. 1 were joint

owners of the suit property, in terms of the sale deed.

7. Subsequently, defendant no. 3 stopped appearing and was

proceeded against ex-parte vide order dated 7th March, 2005.

8. Vide order dated 9th November, 2012, following agreed

issues were taken on record:-

1. Whether the Suit as framed is not maintainable? OPD

2. Whether the Plaintiff has no locus standi to file the present suit? OPD

3. Whether the plaintiff has any right,

title, interest or claim in the suit property? OPP

4. Whether the plaintiff is entitled for a declaration as owner of 50% the suit property? OPP

5. Whether the plaintiff has any prima facie case in his favour? OPP

6. Relief, if any.

9. Plaintiff has examined himself as PW1. Defendant nos. 1

and 2 have examined themselves as DW1 and DW2 respectively.

They have also examined their father, Mohd. Khalilur Rehman, as

DW3. I have heard the learned senior counsel for the plaintiff,

counsel for defendant nos. 1 and 2 and perused the entire material

on record and my issue wise findings are as under:-

10. Defendants have failed to point out as to why the suit is not

maintainable, inasmuch as this issue has not been pressed during the

course of hearing. Accordingly, this issue is decided against the

defendants and in favour of plaintiff.

11. This issue has not been pressed by the parties, inasmuch as,

defendants have failed to point out as to how the plaintiff has no

locus standi to file the present suit. Name of the plaintiff is "Shahid

Khalil". Sale deed Ex. PW 1/3 clearly shows that the suit property

had been purchased in the name of Shahid Khalil and Zahid Khalil.

As per the plaintiff, he is the joint owner with defendant no. 1.

Defendant no. 2 had been falsely claiming himself to be "Shahid

Khalil" in order to grab the suit property. Thus, in my view,

plaintiff has locus standi to file the present suit. Accordingly, this

issue is also decided in favour of the plaintiff and against the

defendants.

12. Both the above issues require common discussion hence are

decided together.

13. Sale deed Ex. PW1/3, in respect of the suit property is in the

joint name of "Shahid Khalil" and "Zahid Khalil". Name of

plaintiff is "Shahid Khalil" and that of defendant no. 1 is "Zahid

Khalil", meaning thereby as per the sale deed, suit property stands

jointly in the name of plaintiff and defendant no.1. Name of

defendant no. 2 is "Hamid Khalil" and this fact is not in dispute.

However, case of the defendant no. 2 is that he is also known as

"Shahid Khalil". According to defendant no.2, his maternal

grandmother used to call him as "Shahid" and for this reason she

had purchased the suit property jointly in his name and defendant

no.1. For this reason, his name was mentioned as "Shahid Khalil" in

the sale deed. Thus, defendant no. 2 claims himself to be joint

owner of the suit property along with defendant no.1, who happens

to be his real brother.

14. In his affidavit of evidence, defendant no. 2 has mentioned

that his maternal grandmother Smt. Musharaf Jahan Begum used to

call him as "Shahid Khalil" which also happened to be the name of

his elder step brother i.e. the plaintiff. However, his this stand

completely stands demolished in his cross-examination, wherein he

has deposed that his maternal grandmother used to call him

"Bhure". He admitted that his maternal grandmother used to call

him "Hamid". He did not remember his maternal grandmother

having called him "Shahid". He further admitted that his maternal

grandmother used to call everyone by their nick name. He also

feigned his ignorance about the name by which his maternal

grandmother used to call him in his childhood. Relevant excerpt of

his testimony reads as under:-

"I am called by the name of „Hamid‟ and „Bhure‟ in the house as well as outside the house. The plaintiff is however only called „Bhaijan‟ in the house and even outside and he is not called by his name. The elders however call him „Nanhe‟. After I grew up my grandmother used to call me Hamid till her death in 1988. I do not know what she used to call me in my childhood. Again said, she also used to call me „Bhure‟. I do not know whether in my childhood she ever called me by the name of „Shahid‟. However, as per my memory, she never

called me „Shahid‟. My grandmother (Nani) used to call all the children by their nicknames. She never used to have any confusion regarding the name of the children of the house. It is correct that prior to her death in 1988 my nani was in sound mental state of health. She used to call plaintiff by the name „Nanhe‟. In my presence my Nani never called the plaintiff by the name Shahid. She always used to call him „Nanhe‟."

(emphasis supplied)

15. The answers given by him, as quoted above, clearly demolish

the case of defendant no. 2 that his maternal grandmother used to

call him as "Shahid" and for this reason she had given his name as

"Shahid" instead of "Hamid", in the sale deed. No other

documentary evidence has been placed on record to show that

defendant no. 2 was also known as "Shahid Khalil" besides his

original name i.e. "Hamid Khalil". The plea taken by him also

appears to be improbable since his step brother was known as

"Shahid Khalil". It is hard to find the same name of two brothers

even if they are step brothers.

16. In his cross-examination, defendant no. 2 has admitted that in

his school record as well as in his passport, his name is recorded as

"Hamid Khalil". He further admitted that he was not in possession

of any document issued by any Government authority wherein his

name has been mentioned as "Shahid Khalil". Testimony of DW1

and DW3 are not sufficient to establish that defendant no. 2 was

also known by the name of "Shahid Khalil" besides his original

name "Hamid Khalil". In his cross-examination, defendant no. 2

has admitted that his maternal grandmother used to call him

"Bhure" and he does not remember that his maternal grandmother

ever called him by the name "Shahid Khalil". In view of the

evidence on record, a finding can safely be returned that the name