Om Prakash vs Shanti Swaroop
2013 Latest Caselaw 4085 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 11th September, 2013

+                           RFA 575/2004
       OM PRAKASH                                            ..... Appellant
                         Through:      Mr. P.S. Rana, Adv.

                                    Versus
    SHANTI SWAROOP                          ..... Defendant
                  Through: Mr. Davinder Hora, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.     The appeal impugns the judgment and decree dated 24.07.2004 of the

Court of Additional District Judge, Delhi of dismissal of suit No.621/2001

filed by the appellant / plaintiff inter alia for partition of property No.O-

IV/19, Lajpat Nagar, New Delhi.

2.     Notice of the appeal was issued and the Trial Court record

requisitioned. The appeal was admitted for hearing on 12.09.2006 and vide

interim order of the same date, the parties were directed to maintain status

quo as regards possession and title of the suit property. The respondent /

defendant died during the pendency of the appeal and vide order dated

16.03.2012 his widow and son were substituted in his place. The widow of

the deceased respondent / defendant has also since died and now this appeal

is being contested by the son only of the deceased respondent / defendant.

The counsel for the appellant / plaintiff was heard yesterday when none

appeared for the respondent / defendant. Accordingly, the counsel for the

respondent / defendant was telephonically contacted and has appeared today

and the counsels have been heard further.

3. The appellant / plaintiff filed the suit from which this appeal arises

pleading:

(i) that the appellant / plaintiff and the deceased respondent /

defendant along with their mother Smt. Dhanni Bai and

younger brother Sh. Murari Lal migrated from West Pakistan

after partition in the year 1947; they had ancestral properties in

Multan city, West Punjab and the respondent / defendant being

the elder brother submitted an application for the grant of

compensation in lieu of properties left in Pakistan;

(ii) that the mother of the parties also submitted an application for

the grant of compensation;

(iii) that at the time of settlement of claim, the appellant / plaintiff

and Sh. Murari Lal were minors and as such the respondent /

defendant being the elder brother applied for grant of

compensation and pursued the claim applications;

(iv) that on 17.04.1952 the Claims Officer passed an order awarding

compensation amount of Rs.3966/10/8, with each of the

appellant / plaintiff, the respondent / defendant along with their

mother Smt. Dhanni Bai and brother Sh. Murari Lal having a

share of Rs.991/10/8 therein;

(v) that the respondent / defendant purchased the suit property out

of funds and compensation granted by the Settlement Officer,

Delhi in lieu of properties left in Pakistan;

(vi) that the suit property was allotted in the name of the respondent

/ defendant being a major and the respondent / defendant made

payment thereof out of compensation aforesaid and the balance

amount was paid in cash out of joint earnings by the appellant /

plaintiff and the respondent / defendant;

(vii) that the Conveyance Deed of the suit property was issued in the

name of the respondent / defendant because at the time of

allotment, he was the only major male member of the family

and the other two brothers i.e. the appellant / plaintiff and Sh.

Murari Lal were minor at that time;

(viii) that after allotment of the suit property, all the four members

aforesaid of the family became joint owners to the extent of

one-fourth share each;

(ix) that the younger brother of the parties Sh. Murari Lal died

unmarried and issueless and after his death, the mother of the

appellant / plaintiff and the respondent / defendant became

owners of one-third share each in the suit property;

(x) that after the death of the mother Smt. Dhanni Bai, the appellant

/ plaintiff and the respondent / defendant became owners in

equal share of the suit property; and,

(xi) that though the respondent / defendant in the 50 years prior to

the institution of the suit had never challenged or denied the

rights of the appellant / plaintiff as a joint owner of the suit

property but had prior to the institution of the suit, taking

advantage of the Conveyance Deed thereof being in his

individual name, started claiming himself to be the sole owner

of the suit property.

Accordingly, the suit was filed claiming the reliefs, (i) of declaration

that the appellant / plaintiff and the respondent / defendant were owners of ½

share each in the suit property and that the respondent / defendant was not

the exclusive owner of the property; (ii) of partition of the property; and, (iii)

of perpetual injunction restraining the respondent / defendant from

exclusively dealing with the property.

4. The respondent / defendant contested the suit by filing a written

statement on the grounds:

(i) that the suit property was allotted in favour of the respondent /

defendant sometime in January, 1953 and the respondent /

defendant had deposited in cash a sum of Rs.581.40p as intial

payment therefor out of the total costs fixed of Rs.2664.40p;

(ii) that the parties to the suit along with their mother and brother

had a verified claim in respect of the property left in Pakistan

and the respondent / defendant got his share of Rs.991/10/8 of

the claim adjusted towards the cost of the suit property and also

purchased the claims of the appellant / plaintiff and his mother

and brothers and paid the agreed amount to the appellant /

plaintiff and the mother;

(iii) that thereafter in consideration of the payment received, the

appellant / plaintiff and the mother Smt. Dhanni Bai wrote two

letters dated 14.12.1964 and 28.12.1964 to the office of the

Regional Settlement Commissioner to the effect that they had

no objection if the amount of their share is adjusted towards the

cost of the suit property and the Sale Deed issued in favour of

the respondent / defendant;

(iv) that the letter dated 05.01.1965 issued by the Settlement Officer

showed that Smt. Dhanni Bai mother of the parties had applied

for transfer of allotment in her favour but the same appeared to

have been rejected as the Lease Conveyance Deed was

executed in favour of the respondent / defendant on 31.08.1965;

(v) that by the time of rejection of the request of the mother for

transfer of allotment, the appellant / plaintiff born in the year

1938 had already become major and if so desirous of

challenging the allotment in the sole name of the respondent /

defendant could have taken his legal remedies including under

the Displaced Persons (Compensation & Rehabilitation) Rules,

1955 framed under the Displaced Persons (Compensation &

Rehabilitation) Act, 1954 but no such steps were taken;

(vi) that in the circumstances, the allotment / transfer of the suit

property in favour of the respondent / defendant became final

and the respondent / defendant continued to be the owner of the

suit property in his own right;

(vii) that the suit was thus barred by time;

(viii) that the jurisdiction of the Civil Court was barred under Section

36 of the Displaced Persons Act;

(ix) that the Government of India as the lessor of the property was a

necessary and proper party to the suit;

(x) that the suit was not correctly valued for the purpose of court

fees and jurisdiction;

(xi) that the suit property was allotted to the respondent / defendant

much before the filing of the compensation application;

(xii) that the appellant / plaintiff and the mother Smt. Dhanni Bai

had received the consideration for their claim and for this

reason only gave no objection for adjusting their claims towards

the costs of the suit property;

(xiv) that the allotment of the suit property was in the individual

capacity of the respondent / defendant and not as the only major

member of the family; and,

(xv) that the appellant / plaintiff had no share in the suit property

and the respondent / defendant was the exclusive owner thereof.

5. The appellant / plaintiff filed a replication further pleading that the

respondent / defendant was holding the title as trustee of the family

members; that the property was equally partitioned in two units with the

appellant / plaintiff and the respondent / defendant occupying the equal

portions; that the property was allotted in the name of the respondent /

defendant because he was acting as the Karta of the family; that the

appellant / plaintiff never sold his verified claims to the respondent /

defendant. Else, the contents of the written statement were denied and the

contents of the plaint reiterated.

6. On the pleadings of the parties, the following issues were framed on

18.09.2002:

1. Whether the suit of the plaintiff is not maintainable in

view of preliminary objection No.1? OPD.

2. Whether the suit of the plaintiff is not maintainable in

view of the Section 36 of Displaced Persons Act, 1954?

OPD

3. Whether the suit of the plaintiff is not maintainable for the

purposes of court fee and jurisdiction? OPD

4. Whether the plaint is not properly verified? OPD

5. Whether the suit of the plaintiff is bad for non-joinder of

necessary parties? OPD

6. Whether the suit of the plaintiff is barred by limitation?

OPD

7. Whether the plaintiff is entitled for declaration as prayed?

OPP

8. Whether the plaintiff is entitled to the partition as prayed?

OPP

9. Relief."

7. The appellant / plaintiff besides examining himself examined one

neighbor. The respondent / defendant besides examining himself examined

five other witnesses. No evidence was led by the appellant / plaintiff in

rebuttal.

8. The learned Additional District Judge in the impugned judgment has

found / observed / held:

(i) that the appellant / plaintiff and the mother Smt. Dhanni Bai

had given their no objection to the amount of compensation of

their share being adjusted towards the suit property and of

which the respondent / defendant was the allottee and to all the

necessary papers viz. Sale Deed etc. with respect to the property

being issued in the name of the respondent / defendant;

(ii) that the appellant / plaintiff and the mother Smt. Dhanni Bai

had filed affidavits dated 28.08.1965 confirming that they had

already given their irrevocable consent for adjustment of their

share of claim compensation towards the costs of the property

and that they had no objection if the Lease/Conveyance

/Transfer Deed of the property were executed in the exclusive

name of the respondent / defendant as they had no interest in

the property nor shall they claim any interest therein;

(iii) that ultimately Conveyance Deed dated 31.08.1965 with respect

to the property was executed in favour of the respondent /

defendant. "All these documents are admitted documents";

(iv) that the appellant / plaintiff in the affidavit aforesaid had

mentioned his age as 22 years - he was not minor at that time;

(v) that the appellant / plaintiff was a major also at the time of

execution of the Conveyance Deed dated 31.08.1965 with

respect to the property in favour of the respondent / defendant;

(vi) that in none of the documents of the contemporaneous time, the

appellant / plaintiff and the mother Smt. Dhanni Bai had

mentioned that they had sold their share of claim compensation

to the respondent / defendant for a particular sum or that in

consideration thereof they were giving no objection to

execution of the conveyance documents in respect of the suit

property in favour of the respondent / defendant;

(vii) that though the circumstance of the appellant / plaintiff and the

mother also having started residing in the property and having

continued to reside in the property for long showed that they

were in dire need of shelter and had agreed to the adjustment of

their share of claim compensation towards the price of the

property to avoid any delays in allotment thereof especially

with the appellant / plaintiff being a younger brother but from

the execution of the affidavit aforesaid of the appellant /

plaintiff and the Conveyance Deed of the property in the name

of the respondent / defendant, it could not be said that the

appellant / plaintiff was not aware of the fact that the property

stood in the name of the respondent / defendant and it was

unbelievable that the appellant / plaintiff came to know only on

28.04.2001 that he had no right in the property;

(viii) that the appellant / plaintiff had waited for more than 35 years

to challenge the right of the respondent / defendant but by

which time the period of limitation to assert such right had

expired;

(ix) that the suit was thus barred by limitation and not maintainable;

(x) that the suit was not barred by Section 36 of the Displaced

Persons Act;

(xi) that the suit was properly valued for the purpose of court fees

and jurisdiction;

(xii) that there was no defect in the verification of the plaint;

(xiii) that the suit was not bad for non-joinder of any necessary party;

and,

(xiv) that the appellant / plaintiff was not entitled to any of the reliefs

claimed.

9. As the aforesaid narrative would show, what has gone against the

appellant / plaintiff is the affidavit given by the appellant / plaintiff and

proved as Ex.DW6/B and which is as under:

"No objection certificate for the issue of sale Before the Managing Officer, Jam Nagar House N. Delhi

In the matter of property No.O-IV/19, D.S. Lajpat Nagar, situated at New Delhi.

AFFIDAVIT

Affidavit of Sh. Om Prakash, S/o Sh. Tej Bhan aged about 22 yrs. Resident of O-IV/19, D.S. Lajpat Nagar, New Delh-

14. I do hereby solemnly affirm and declare as under:-

1. That I have associated myself with the Principal purchaser Sh. Mohan Lal, S/o Sh. Tej Bhan for adjustment compensation under CAF No.D/4973-A/IM A, to the extent of Rs.541.00, towards the balance cost property cited above.

2. That I have already given my irremovable consent for the adjustment of Rs.541.00 from my claim compensation aforesaid.

3. That I have no objection if the lease / conveyance / transfer deed of the above noted Property is executed in the exclusive name of the Principal purchaser Sh.

Mohan Lal, S/o Sh. Tej Bhan as I have no interest in the property nor shall I claim any interest therein.

Sd/-

Deponent VERIFICATION

I solemnly affirm that what is mentioned above is true to the best of my knowledge and belief and that no fact has been concealed.

Sd/-

Deponent"

10. The suit from which this appeal arises was instituted in or about the

year 2001 i.e. after the coming into force of the Benami Transactions

(Prohibition) Act, 1988, Section 4 (1) & (2) whereof prohibits any suit,

claim, action or defence to enforce any right in respect of any property held

benami against the person in whose name the property is held or against any

other person by or on behalf of a person claiming to be the real owner of

such property. However, Section 4(3) thereof makes the said prohibition

inapplicable where the person in whose name the property is held is a

coparcener in a Hindu undivided family and the property is held for the

benefit of the coparceners in the family and where the person in whose name

the property is held is a trustee or other person standing in a fiduciary

capacity and the property is held for the benefit of another person for whom

he is a trustee or towards whom he stands in such capacity. The appellant /

plaintiff had as aforesaid pleaded a relationship of trust and I am of the

opinion that the bar under the Benami Act would also have not come in the

way of the appellant / plaintiff especially in view of the recent dicta of the

Supreme Court in Marcel Martins Vs. M. Printer (2012) 5 SCC 342 but for

the affidavit aforesaid in which the appellant / plaintiff has not only given a

no objection to the execution of the Conveyance Deed with respect to the

property in the name of the respondent / defendant but has also categorically

stated that he had no interest in the property and shall not claim any interest

therein. Certainly a person, after 35 years of giving such an affidavit, cannot

claim to be the owner of the property and claim the person in whose name

the property is held to be a benami at least to the extent of 50% of the share.

Faced therewith the counsel for the appellant / plaintiff has contended that

such affidavit is not a registered document and could not have affected the

rights of the appellant in the property.

11. I am unable to accept the aforesaid contention. As on the date of

making of the affidavit, the appellant / plaintiff had no right or interest in

any property and only had a share in the claim compensation awarded in

favour of the parties to the proceedings and their mother and brother. The

said right to compensation can by no stretch of imagination be said to be

immovable property, relinquishment of rights wherein would require a

registered document.

12. The documents on record show and the counsel for the appellant /

plaintiff also agrees, that by the time the order dated 17.04.1952 on the

claims filed by the parties to the proceedings and their mother and brother,

holding them entitled to compensation of Rs.3966/10/8 with each of the four

having 991/10/8 share therein was made, the property had already been

allotted in the sole name of the respondent / defendant. There is nothing to

show that the allotment of the property in the name of the respondent /

defendant was in lieu of any ancestral properties.

13. The counsel for the appellant / plaintiff has at this stage interjected

and stated that the affidavit was given before a Judicial Officer.

14. I am unable to see as to what impact the same would have.

15. Thus it is not as if the allotment of the property is in lieu of any joint

properties left in Pakistan or as part of the compensation package in lieu

thereof. All that has happened is that the appellant / plaintiff and the mother

allowed their share of claim compensation also to be adjusted towards the

cost of the property allotment whereof was in the name of the respondent /

defendant only. Though such contribution to sale consideration in certain

circumstances could have vested title in the property in favour of the

appellant / plaintiff and the mother but the appellant / plaintiff by furnishing

the affidavit supra disclaiming any rights whatsoever in the property have

ruled out any possibility of such vesting also.

16. The counsel for the appellant / plaintiff then contends that the said

affidavit does not form part of the pleadings and in fact was not relied upon

and filed by the respondent / defendant and was sprung as a surprise on the

appellant / plaintiff during the recording of the evidence of DW6 namely the

official from the office of the Land and Development Office, New Delhi

examined by the respondent / defendant and who had brought the file with

respect to the said property and which contained the affidavit aforesaid. He

has contended that the appellant / plaintiff has not even had an occasion to

deny or challenge the said affidavit and the matter be remanded for the said

purpose.

17. Though undoubtedly, the affidavit came on record during the

testimony of the witness from the office of the L&DO but it is not as if the

appellant / plaintiff had no occasion to, if of the view that the said affidavit

was not executed by him and was not binding on him, to take such a stand.

Not only did the appellant / plaintiff not cross examine the said witness from

the office of the L&DO and did not even put to him that the said affidavit

did not bear the signatures of the appellant / plaintiff but a perusal of the

Trial Court record shows that after the examination of the said witness on

18.11.2003, the recording of the evidence of the respondent / defendant

continued on 19.11.2003, 06.01.2004, 04.02.2004, 10.02.2004 and

20.02.2004 when the recording of the evidence was completed. Though the

appellant / plaintiff had opportunity to lead rebuttal evidence and in which

stand if any required to be taken with respect to the affidavit could have

been taken but that opportunity also was not availed and the matter

adjourned to 02.04.2004 for addressing final arguments. In fact the final

arguments were heard only on 13.07.2004. The appellant / plaintiff thus had

more than eight months after the aforesaid affidavit had come on record to,

if intended to challenge the same, do so but no such steps were taken. Even

in the memorandum of appeal it is not the case of the appellant / plaintiff

that the said affidavit was not given by the appellant / plaintiff or does not

bear his signatures. This appeal itself has remained pending for the last

nearly nine years and the limitation for the appellant / plaintiff to even if can

be said to be aggrieved by the said affidavit, to challenge the same has also

long since expired. The appellant / plaintiff cannot now be heard to say that

he is not bound by the said affidavit when no such ground has been taken

neither before the learned Additional District Judge nor in this appeal.

18. As far as long residence / occupation by the appellant / plaintiff of the

property is concerned, the same also in view of the categorical stand of the

appellant / plaintiff in the affidavit aforesaid could only be on account of

relationship with the respondent / defendant i.e. as a licensee and not in any

other capacity.

19. The counsel for the appellant / plaintiff has referred to Bharat Singh

Vs. Kunwar Singh AIR 1991 MP 368, Gauranga Sahu Vs. Bhaga Sahu

AIR 1976 Orissa 49, Raj Ballav Das Vs. Haripada Das AIR 1985 Calcutta

2 and Ibrahim Vs. Sharifan AIR 1980 P&H 25 with respect to the period of

limitation under Article 58 of the Limitation Act to contend that the

limitation of three years from the date when the right to sue first accrues

commenced to run not from the date of mere denial or innocuous threat to

appellant / plaintiff‟s right but from the clear and unequivocal threat to the

appellant / plaintiff‟s right necessary for the limitation to commence

running. However in the present case since the appellant / plaintiff had

given the affidavit aforesaid in the year 1965 disclaiming any right in the

property, if the appellant / plaintiff wanted to wriggle out from his statement

in the said affidavit by explaining any circumstances owing to which he

claims to be not bound thereby, the limitation therefor has to be from the

date of the execution of the affidavit, the execution whereof was admittedly

in the knowledge of the appellant / plaintiff and could not depend upon the

threat by the respondent / defendant to dispossess the appellant / plaintiff

from the property. The said judgments thus do not come to the rescue of the

appellant / plaintiff.

20. No error is thus found in the impugned judgment and decree.

Resultantly, the appeal fails and is dismissed. However in the facts, no

costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J SEPTEMBER 11, 2013 „gsr‟..