Dr.Satish Kumar vs Shiv Kumar & Anr.
2014 Latest Caselaw 1041 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: February 25, 2014

+                                RFA (OS) 154/2013

      DR.SATISH KUMAR                              .....Appellant
               Represented by:         Mr.S.S.Jain, Advocate with
                                       Ms.Veena Rupara, Mr.Nikesh Jain
                                       and Ms.Himani Gupta, Advocates

                                  versus

      SHIV KUMAR & ANR.                             .....Respondents
              Represented by:          None

      CORAM:
      HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR.JUSTICE JAYANT NATH

PRADEEP NANDRAJOG, J. (Oral)

CM No.19350/2013 Allowed subject to just exceptions.

CM No.19352/2013 For the reasons stated in the application the delay of 49 days in re- filing the appeal is condoned.

CM No.19351/2013 For the reasons stated in the application time is extended for filing the court fee in appeal till when it was filed on November 25, 2013. RFA (OS) No.154/2013

1. The cacophony in paragraph 2 of the plaint, wherein it is pleaded that Sh.Jiya Lal S/o Sh.Neki Ram is the grandfather as well as the adoptive father of the appellant - the plaintiff, becomes audible music

after grappling and jostling with learned counsel for the appellant in Court for 20 minutes, as we understand that Late Sh.Neki Ram was blessed with three sons named : (i) Subhash Chander, (ii) Jiya Lal, and

(iii) Laxmi Narayan. The appellant is the son of Hukam Chander who was born to Laxmi Narayan and his wife. Thus, Jiya Lal would be the paternal grand uncle of the appellant and not his paternal grandfather as pleaded in paragraph 2 of the plaint.

2. The dispute pertains to a gift deed relied upon by Shiv Kumar, the first respondent in the appeal and the first defendant in the suit. The donor is Shanti Devi wife of Jiya Lal. The appellant claims that Jiya Lal and Shanti Devi had adopted him. The two died issueless. The appellant states that residing in Australia when Shanti Devi died he was prevented from acting as the owner of property No.L-231, Shastri Nagar, Delhi - 110052 by Shiv Kumar on the strength of the gift-deed dated February 08, 2010.

3. The undisputed position is that the appellant had earlier filed a suit in the Court of the District Judge Delhi laying a right to the property in question pleading that his father Hukam Chander had contributed a sum of `81,650/- when the property was purchased in the name of Shanti Devi and further that his father had effected the construction on the ground floor and the first floor of the property. He had made a reference in the plaint to the gift-deed executed by Shanti Devi on which Shiv Kumar was relying upon.

4. The plaint was found to be undervalued for purposes of jurisdiction and court fee and rather than seek a return thereof, appellant was ill advised to withdraw the suit with liberty to file a fresh suit.

5. But said ill advise does not concern us for purposes of our decision for the reason vide impugned order dated August 08, 2013, rejecting the

plaint and allowing IA No.7525/2012 filed by Shiv Kumar, the learned Single Judge has found, and rightly in our opinion, that the appellant has totally changed his pleadings in the instant suit vis-à-vis this suit instituted before the learned District Judge Delhi.

6. In the suit filed before the learned District Judge Delhi the appellant claimed title to the suit property on the plea that his father Hukam Chander S/o Laxmi Narayan had paid money when the property was purchased in the name of Shanti Devi wife of Jiya Lal and that Hukam Chander had constructed the ground floor and the first floor on the land. No doubt there was an additional challenge to the gift deed by pleading fraud played by Shiv Kumar upon Shanti Devi, but principally the challenge was to the very power of Shanti Devi to gift the property. In the instant suit the plea in the earlier suit that appellant was the son of Hukam Chander has been replaced by the plea that the appellant was adopted by Jiya Lal and Shanti Devi and thus title to the property now is being claimed as the son of Shanti Devi.

7. We agree with the learned Single Judge that the appellant by changing his stand and contradicting himself cannot maintain the instant action.

8. Besides, it is settled law that pleadings have to prima facie make good with such documentary evidence on proof whereof the claim would be sustained. Except for pleading that the appellant is the adopted son of Shanti Devi we find no averments in the plaint as to when was the appellant given an adoption by his father Hukam Chander to Jiya Lal and Shanti Devi. We find no averments to any act during the lifetime of Shanti Devi and Hukam Chander evidencing adoption. We find no document filed evidencing adoption. The speculative pleading does not measure up to the bar of a semblance of a claim warranting a trial.

9. The appellant is taking pot shots in the dark hoping that something may emerge to which he can latch on to.

10. Trials have not to be held as roving and fishing inquiries. Issues of fact and law at which parties are at variance have to be settled on clear, not speculative, pleadings.

11. We dismiss the appeal in limine and leave the parties to bear their own costs in the appeal because we have not issued a notice in the appeal. CM No.19349/2013 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(JAYANT NATH) JUDGE

FEBRUARY 25, 2014 mamta