Jivender Kumar Jain vs Jaswant Singh (Deceased) Through ...
2014 Latest Caselaw 1880 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 15th April, 2014.

+      CS(OS) 958/2011, IA No.6385/2011 (u/O 39 R-1&2 CPC) & IA
       No.5550/2012 (of the defendant no.1 for preponment of date)

       JIVENDER KUMAR JAIN                                       ..... Plaintiff
                   Through:             Mr. Ashesh Lal, Mr. Raghav
                                        Parwatiyar, Ms. Salma Sideam & Mr.
                                        Ajay Pratap Singh, Advs.

                                    Versus

    JASWANT SINGH (DECEASED) THROUGH LRS ...Defendant
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The file is taken up today as 14th April, 2014 was a holiday.

2. The suit is listed today for hearing arguments on the issues ordered on

16th December, 2013 to be treated as preliminary.

3. None appears for the defendants.

4. However the counsel for the plaintiff has been asked to argue. The

counsel for the plaintiff is also not willing to argue contending that there are

some subsequent developments which have to be brought on record.

However the counsel has been asked to argue, as on such excuses,

especially when the plaintiff has been enjoying the ex parte ad interim

order, suits cannot be kept pending. It may be noticed that the plaintiff

sought adjournment on the previous date of 7th February, 2014 also for

addressing arguments on the preliminary issues and has not paid the costs

also with which the plaintiff was burdened on that date. The counsel for the

plaintiff has been heard and the records have been perused.

5. The plaintiff has instituted this suit, (i) for declaration that the decree

of the Court of the learned Addl. District Judge, Delhi in Suit No.518/1957

later converted to Suit No.7/1979 is null and void; (ii) for declaration that

the plaintiff is the owner of property bearing No. IX/48, ad measuring 118

sq. yds., Kailash Nagar, Delhi - 110 031 under the Sale Deed dated 15th

September, 1953 in favour of his predecessor; (iii) for partition of the share

of the plaintiff from other shareholders of Khasra No.333/40 and 332/37

situated in Village Seelampur, Gandhi Nagar, Delhi; (iv) for declaration that

Khasra No.133/40 is not part of the share of the defendants who are the

legal representatives of late Shri Jaswant Singh; and, (v) for permanent

injunction and mandatory injunction restraining the defendants from

dispossessing the plaintiff from the "suit property".

6. It is the case of the plaintiff:-

(i) that Shri Jaswant Singh supra, predecessor of the defendants

filed a suit for partition being Suit No.518/1957 supra claiming

to have purchased land ad measuring 1100 sq. yds. out of land

under Khasra No.333/40 in the area of Village Seelampur in

the new abadi of Shahdara, Delhi vide Sale Deed dated 10th

February, 1954;

(ii) the said suit was dismissed by the Trial Court;

(iii) that Shri Jaswant Singh preferred RFA No.35-D of 1961 and

which was allowed vide judgment dated 19th August, 1971 of

this Court and a preliminary decree for separating 1100 sq. yds.

of the said Shri Jaswant Singh was passed and a Local

Commissioner appointed;

(iv) that the Court of the learned Addl. District Judge, in pursuance

to the above, vide judgment dated 9th August, 1982 passed a

final decree;

(v) that the plaintiff is the lawful owner of property bearing No.

IX/48, Main Road, Kailash Nagar, Delhi and is in possession

thereof for 37 years prior to the institution of this suit;

(vi) that the plaintiff learnt of the proceedings aforesaid initiated by

Shri Jaswant Singh when the final decree dated 9th August,

1982 therein was sought to be executed by the legal heirs of

Shri Jaswant Singh;

(vii) that the plaintiff filed objections under Section 47 of the CPC

in the aforesaid execution, claiming to have derived title to the

property in his possession vide Sale Deed dated 15 th

September, 1953 in favour of his predecessor and with respect

to Khasra No.133/40 and contending that the property in

possession of the plaintiff was not part of the property subject

matter of the final decree dated 9th August, 1982 supra;

(viii) that the said objections were dismissed by the Trial Court vide

order dated 28th July, 2010;

(ix) that the plaintiff filed an appeal against the dismissal of his

objections (being Ex.F.A. No.13/2010) but which was also

dismissed vide order dated 28th February, 2011 of this Court;

(x) that the plaintiff applied to this Court for review of the order

aforesaid of dismissal of Ex.F.A. No.13/2010 and during the

pendency of the review, the plaintiff learnt of certain other

facts;

(xi) that during the pendency of the review the plaintiff learnt that

while the suit filed by Shri Jaswant Singh and the decree

therein was with respect to Khasra No.333/40 only but

subsequently Khasra No.332/37 was also added; however

Khasra No.133/40 in which the property of the plaintiff is

situated is distinct from either of the said two Khasra; and,

(xii) that the land purchased by Shri Jaswant Singh as well as the

land purchased by the plaintiff were agricultural land and the

jurisdiction of the Civil Court with respect thereto was barred

by Section 185 of the Delhi Reforms Act, 1954 and any decree

passed by the Civil Court in the said suit filed by Shri Jaswant

Singh was thus a nullity; reliance in this regard is placed on

Harshad Chiman Lal Modi Vs. DLF Universal Ltd. (2005) 7

SCC 791.

7. This suit came up first before this Court on 25th April, 2011 when a

request was made to have the same placed before the same Bench before

which CS(OS) No.699/2011 then also pending before this Court on the

same subject matter was pending.

8. Summons of this suit were issued and vide ex parte ad interim order

dated 27th April, 2011 status quo was directed to be maintained qua title and

possession of the suit property.

9. Of the six legal heirs of Shri Jaswant Singh impleaded as defendants

no.1(a) to 1(f) in this suit, only the defendant no.1(f) Shri Rajmilkh Singh

Oberoi has filed written statement claiming to be the heir of Shri Jaswant

Singh qua the subject property under his Will. The counsel for the plaintiff

informs that the other defendants already stand deleted from the array of

defendants.

10. The sole defendant Shri Rajmilkh Singh Oberoi has contested the suit

inter alia contending that the plaintiff is the successor of Shri Govind Ram

who was defendant no.4 in the suit aforesaid filed by Shri Jaswant Singh in

which the preliminary decree dated 19th August, 1971 and final decree dated

9th August, 1982 were passed and the objections preferred by the plaintiff in

execution having also been dismissed, the plaintiffs is not entitled to

maintain the present suit.

11. On 16th December, 2013, the following issues were framed in this

suit:-

"(i) Whether the present suit is maintainable in view of the decision in Jaswant Singh Vs. Santosh Singh? OPP

(ii) Whether the suit is not barred by res judicata?

OPP

(iii) Whether the plaintiff is entitled to the reliefs prayed for in the suit? OPP

and of which the issues no.(i) and (ii) above were ordered to be heard

as preliminary issues.

12. At the outset, the fate of CS(OS) No.699/2011, on the basis of parity

with which summons in the present suit were got issued, has been enquired.

The counsel for the plaintiff states that the said suit was withdrawn on 22nd

November, 2013 with liberty to raise objections under Order 21 of the CPC.

It is contended that the plaintiff in CS(OS) No.699/2011, unlike the plaintiff

herein had not preferred the objections to the execution.

13. It has next been enquired from the counsel for the plaintiff as to how

the plaintiff, after the predecessor-in-interest of the plaintiff was a party to

the suit and has suffered a decree, and after the plaintiff himself had

preferred objections to the execution of the said decree and which objections

were dismissed and after the appeal preferred by the plaintiff against the

dismissal of the objections has been dismissed by this Court, can maintain

this suit.

14. The counsel for the plaintiff invites attention to the order dated 8th

April, 2011 of this Court of dismissal of Review Petition No.138/2011 filed

by the plaintiff in Ex.F.A. No.13/2010 observing:-

"However, nothing stated herein would prevent the appellant to establish that Khasra No.133/40 is something

over and above Khasra No.333/40/02 and 332/37 in any other proceeding which can be taken by the appellants as per law."

On the basis thereof it is stated that the present suit is maintainable

owing to the liberty aforesaid given.

15. However the aforesaid liberty is subject to the proceeding

subsequently instituted, being maintainable in law. Without the plaintiff

satisfying this Court that after the history aforesaid, the present suit is

maintainable, the plaintiff cannot on the basis of the aforesaid liberty,

maintain this suit.

16. No answer has been forthcoming.

17. Attention of the counsel for the plaintiff is invited to Rule 101 of

Order 21 of the CPC which provides that all questions (including questions

relating to right, title or interest in the property) arising between the parties

to a proceeding on an application under Rule 97 or Rule 99 or their

representatives, and relevant to the adjudication of the application, shall be

determined by the Court dealing with the application, and not by a separate

suit. It is not in dispute that the plaintiff is a successor of a defendant /

judgement debtor to the preliminary decree dated 19 th August, 1971 and

final decree dated 9th August, 1982 in the suit filed by Shri Jaswant Singh. A

perusal of the order dated 28th July, 2010 of dismissal of the objections to

the execution thereof filed by the plaintiff also shows the plaintiff to have

raised similar grounds in the said objections also. The plaintiff, after the

order of dismissal of the objections has attained finality, cannot be permitted

to maintain this round of litigation.

18. The counsel for the plaintiff then contends that since the land was

agricultural and the jurisdiction of the Civil Court was barred, the

preliminary decree dated 19th August, 1971 and final decree dated 9th

August, 1982 are a nullity. On being asked to show the basis for such a plea,

the counsel for the plaintiff argues that it is the admitted position. However

a perusal of the written statement of the defendant to the said plea of the

plaintiff in the plaint shows to the contrary; rather the same shows the

defendant to have not only controverted the said plea but to have also

pleaded that this issue was raised and adjudicated during trial in the suit

filed by Shri Jaswant Singh and has attained finality. The counsel for the

plaintiff though denies but does not have the copy of the judgment in the

suit filed by Shri Jaswant Singh to controvert the said plea of the

defendants. It may be mentioned that the plaintiff has not even bothered to

file replication to the written statement of the plaintiff.

19. Moreover, when the plaintiff got issued summons / notice in the

present suit contending the present suit to be at par with CS(OS)

No.699/2011 and when CS(OS) No.699/2011 as aforesaid has been

withdrawn with liberty to seek remedy of objections under Order 21 of the

CPC, the principle of parity again demands that this suit be also dismissed

for the same reason. Though the counsel for the plaintiff contends that the

plaintiff in CS(OS) No.699/2011 had till then not availed the remedy of

objections as distinct from the plaintiff herein who has filed this suit after

availing the remedy of execution but the same would not make any

difference. Once it has been held that the suit is not maintainable and the

remedy if any is by way of objections under Order 21, the dismissal of the

said objections would not vest jurisdiction in the Court.

20. No other argument has been addressed by the counsel for the plaintiff.

21. The preliminary issues are accordingly decided against the plaintiff

and in favour of the defendant. Resultantly, the suit is dismissed; however

the counsel for the defendants having not appeared, no order as to costs.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J.

APRIL 15, 2014/pp..