Roop Singh vs Roshan Lal & Ors.
2014 Latest Caselaw 2096 Del

8

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No. 93/2012 and CM 10215/2012 (Stay)

%                                                          28th April, 2014

ROOP SINGH                                           ......Appellant
                          Through:       Mr. Arvind Nayar, Mr. Bharat
                                         Bhushan Gupta, Mr. Sanad Kumar
                                         Jha, Advocates.


                          VERSUS

ROSHAN LAL & ORS.                                        ...... Respondents

                          Through:       Mr. Rajender Kumar, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This second appeal is filed by the appellant/plaintiff against the

concurrent judgments of the courts below; of the trial court dated 18.7.2011

and the first appellate court dated 3.5.2012; by which the suit filed by the

appellant/plaintiff claiming the reliefs of declaration, injunction etc. was

dismissed. Originally in the suit four reliefs were claimed, but the fourth

relief claimed of partition was withdrawn as per order the dated 5.9.2006 as

recorded by the trial court. The other three reliefs which will therefore

remain are as under :

"i) A decree for declaration be passed in favour of the plaintiff and against the defendants declaring the plaintiff is the co-sharer in the HUF property and sole and absolute owner of the property no. 58 Pana Vill. & PO. Mundka Delhi and the plor measuring 68 x 24 ft. alongwith the passage/corridor at 8 ft. at khasra no. 849/1/1, 849/2/1 Village Mundka Delhi.

(ii) Further directing defendants to remove themselves from the portion of the corridor/gali 8 ft. of the property to enable the plaintiff for smooth passage entrance to his residence.

(iii) Grant a decree of permanent injunction restraining the defendants or any other persons restraining the defendants or any other persons acting through or on their behalf there servants, agents, representatives of any one acting under or through them in any manner from interfering in the peaceful possession of the residential house situated on plot no. 58 Pana Samdyan village & PO Mundka Delhi and plot measuring 68 x 24 ft. falls in Lal Dora alongwith the passage/corridor at 8 ft. at khasra no. 849/1/1, 849/2/1 Vilage Mundka Delhi and also restraining the defendants from creating any theird party interest in the agriculture land measuring 2 bighas and 2.5 biswas at khasra no."

2. The disputes in the present case pertain to a residential house situated

on a plot of 85 sq. yards situated in a plot measuring 900 sq. yards.

Appellant/plaintiff claims to be in possession of the plot of 85 sq. yards or an

area of 68x24 ft. alongwith 8 feet corridor falling in the Lal Dora of the

village which he had built upto the first floor bearing no. 58, Plot no. 37,

Mundka, Delhi and situated in K.No.849/1/1 and 849/2/1, village Mundka,

Delhi.

3. The essential and main reliance which was placed upon by the

appellant/plaintiff to claim rights in the suit property was the family

settlement entered into between the parties on 14.4.2002. This settlement is

in Hindi and in the judgment of the first appellate court English translation

of the same is given as under:

"This compromise has ben arrived between Roop Singh S/o Roshan Lal, Surinder Singh S/o Sh. Roshan Lal, Joginder Singh S/o Sh. Roshan Lal R/o Mundka, the three brothers out of their own free Will and it has been decided that all the three brothers are bound by this Agreement and he himself shall be liable for the same. The compromises is as follows:

(i) Sh. Roop Singh has agreed to give a 6 iron garders of 9 ft. X 3 x 5" and 4000 bricks of best quality and 16 tukdi of 1 ½ X 2".

(ii) Residential House constructed inside the plot on eastern direction situated at last in the plot which is 24 ft. in width from east to west direction.

(iii) Sh. Surinder Singh shall get the middle portion of the land, which is on the Western side aprox 48 fts. Wide as his share.

(iv) Sh. Joginder Singh shall get the western side which is approx. 50 ft. wide.

(v) The width of the gali (corridor) on the north south side adjacent to the wall of the Sher Singh is approx 8 ft. (sd/- Roshan Lal) (sd/- Surinder Singh) (sd/- Zile Singh) (sd/- Joginder) (sd/- Nafe Singh) and (sd/- Roop Singh)."

4. I have read the Hindi/vernacular document and found that the English

translation is not accurate because the Hindi/vernacular document shows that

actually by virtue of this document appellant/plaintiff gets ownership of the

residential portion which has been constructed by him, but this aspect does

not appear in the English translation. However, I note that none of the party

disputes that if the family settlement dated 14.4.2002, Ex. PW-1/4 is taken

as correct this document gives the right which is claimed by the

appellant/plaintiff in the suit property. In the typed English translation

actually para no. (ii) should read "Roop Singh has the right on the residential

house constructed inside the plot in the east direction at the back which is 24

ft. wide from east to west".

5. It is relevant to note that this document Ex. PW-1/4 is signed by the

father Roshan Lal and also by all. The three sons being the plaintiff Roop

Singh and the other two sons Sh. Surinder Singh and Sh. Joginder Singh

defendant nos. 2 & 3 respectively. The only challenge by the

defendants/respondents to this document is that this document is not being

proved and exhibited as required by law.

6. The following substantial question of law is framed for the disposal of

this second appeal:-

"Whether the court below committed gross illegality and perversity in

holding that the family settlement dated 14.4.2002 Ex. PW-1/4 is not proved

in spite of the fact that there was no objection to exhibition of this document

at the time of exhibition of this document, and therefore, no objection can be

subsequently raised to the exhibition of this document in view of the

judgment of the Supreme Court in the case of R.V.E. Venkatachala

Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Anr. AIR

2003 SC 4548."

7. The aforesaid question of law needs to be answered in favour of the

appellant/plaintiff for the reason that it is not disputed that the family

settlement Ex. PW-1/4 does bear the signatures of all the parties to the

present suit i.e three sons and the father. It is also not disputed that as per

this family settlement each of the three sons of Sh. Roshan Lal get rights in

the suit property and the plaintiff would get an area measuring 68 x 24 ft.

along with passage/corridor 8 ft. It is an undisputed fact emerging on record

that there was no objection to the exhibition of the family settlement, and

therefore, the family settlement stands proved in view of ratio of the

judgment of the Supreme Court in the case R.V.E. Venkatachala Gounder

(supra) which holds that once the document stands exhibited without any

objection (and the document is admittedly signed by all the parties) rights

under the said document have to flow and accordingly appellant/plaintiff

will be entitled to the reliefs claimed in the suit with respect to the subject

plot admeasuring 68 x 24 ft. alongwith a passage/corridor of 8 ft. in the

property stated in para 2 of this judgment and in the site plan Ex.PW1/5.

8. The regular second appeal is allowed and disposed of accordingly,

leaving the parties to bear their own costs.

APRIL 28, 2014                                   VALMIKI J. MEHTA, J
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