Prem Sarup vs Savitri Devi & Ors.
2014 Latest Caselaw 1272 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RSA No. 151/2013 and CM No. 12264/2013 (Stay)

%                                                           10th March, 2014

PREM SARUP                                          ......Appellant
                          Through:       Mr. Yash Pal Ahuja, Advocate


                          VERSUS

SAVITRI DEVI & ORS.                           ...... Respondents

                          Through:       Mr. Sarvesh Bisaria, Mr. P.C.
                                         Sharma, Advocates

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 under Section 100 CPC is filed against the

concurrent judgments of the courts below; of the trial court dated 27.7.2010

and the first appellate court dated 20.7.2013; by which the suit of the

respondents/plaintiffs for possession has been decreed with respect to the

area shown in red in site plan Ex. PW-1/3 forming part of the property

bearing no. XVI/3516, Gali no. 6, Ragarpura, Karol Bagh, New Delhi. Both

the courts below have decreed the suit on the basis of two conclusions. The

first conclusion is that as per the final decree of partition dated 22.3.1971 in

the partition suit between all the members of the family including present

plaintiffs/respondents and the appellant/defendant (in Suit No. 492/70,

original Suit No. 405/69) the portion for which possession was claimed by

the respondents/plaintiffs admittedly fell to her share. The second

conclusion given by the courts below is that respondents/plaintiffs had

received possession of this portion and this was a conclusion which is

derived inter alia on account of a sale deed dated 30.6.1995, Ex. PW-2/1,

executed by other co-owners and who are parties to the partition decree

whereby a specific portion of the property which fell to them on partition

was sold to third party- buyers. This aspect of separate possession of having

been taken by the parties to the partition suit and the final decree of partition

dated 22.3.1971 also became clear from the fact that appellant/defendant

himself filed the house tax receipts Exs. DW-1/3 and DW-1/4 which only

pertain to his part portion of the property i. e 50 square yards, thus clearly

showing that partition had been effected between the parties in terms of and

as a follow-up of the final decree of partition dated 22.3.1971.

2. Before me counsel for the appellant urged the following aspects:-

(i) That there was a family settlement between the parties whereby the

respondents/plaintiffs accepted the appellant/defendant as the owner of the

suit premises and thus the suit for possession ought to be dismissed.

(ii) The final decree for partition dated 22.3.1971 was not engrossed on

stamp papers, and therefore, respondents/plaintiffs cannot claim finality of

the final partition decree dated 22.3.1971 and hence the

respondents/plaintiffs cannot be given the relief of possession as prayed for

in the suit and which would amount to execution of the partition decree

which has not been stamped.

(iii) Respondents/plaintiffs failed to prove that she ever came in

possession of the suit property pursuant to the partition decree of 22.3.1971,

and therefore, the suit for possession is not maintainable otherwise

respondents/plaintiffs will take benefit of the partition decree dated

22.3.1971 which has not become final on account of the same having not

been engrossed on the requisite stamp paper.

3. I may note that the counsel for the appellant at the outset conceded

that appellant/defendant is not claiming title on the basis of adverse

possession, and which aspect needs to be mentioned, inasmuch as, the

judgments of the courts below show that appellant/defendant had claimed

ownership of the suit property on the basis of adverse possession.

4. The first argument urged on behalf of the appellant/defendant of there

existing a family settlement is a misconceived argument and has been dealt

with by the trial court in para 5 of its judgment (internal page 6 of the

judgment) that this plea of family settlement cannot be believed and is of no

consequence because no such pleading was raised in the written statement

and there is no such issue framed. In view of the fact that there is no

pleading and no issue framed as regards the alleged family settlement

making the appellant/defendant the owner of the suit property, the courts

below have rightly rejected this defence.

5. So far as the second and third arguments are concerned that the final

decree of partition cannot operate because the same is not stamped, the said

argument is an argument without substance because the

respondents/plaintiffs are not seeking to execute the final decree of partition

by claiming possession inasmuch as their claim is that the parties to the final

partition decree had pursuant to the final partition decree already received

possessions of their respective portions, and only for such respective

portions of which they had received possession because of implementation

of the decree for partition that the suit for possession was filed by the

respondents/plaintiffs. Therefore, it makes no difference in law if the final

decree for partition was not engrossed on the requisite stamp papers because

the respondents/plaintiffs are not seeking execution of the final decree for

partition but are claiming possession which each of the parties received

pursuant to and after passing of the final decree of partition. Therefore, the

suit is not really for execution of the final decree for possession but for

seeking possession after receiving possession pursuant to all the parties

receiving their respective possessions under the decree for partition dated

22.3.1971.

6. As regards the third argument which is urged on behalf of the

appellant/defendant that respondents/plaintiffs had not received possession

of the suit property after the decree for partition was passed on 22.3.1971, it

needs to be noted that there is a concurrent finding of fact by both the courts

below that the partition decree was implemented and each of the party to the

decree was put in separate possessions of their portions as per the partition

decree. The respondents/plaintiffs also had been put in possession of the suit

property and respondent no. 1 had initially allowed her mother-in-law to

reside in the suit property and after her death it was occupied by the

appellant/defendant as he was a close relative of the respondents/plaintiffs.

The courts below have also relied upon the sale deed Ex. PW-2/1 executed

by other co-owners on 30.6.1995 with respect to sale of their portion

received on partition of the suit property, and which according to the courts

below showed that parties had taken possessions of their respective portions

as per the partition decree. There is also oral evidence that respondent

no.1/plaintiff no. 1 permitted her mother-in-law to stay in the suit property.

Therefore the respondent/plaintiff having received possession of the suit

property is a finding of fact arrived at by the courts below. Also as rightly

held by the courts below that it is not necessary that consent to occupy must

be given only in writing when there is closeness of relationship between the

parties. A second appeal lies under Section 100 CPC only if a substantial

question of law arises. Appreciation of evidence and finding of fact of

respondents/plaintiffs having received possession of the suit property is not a

substantial question of law more so when two views are possible and courts

below have taken one possible and plausible view. I, therefore, hold that the

courts below have rightly held that the respondent no.1/plaintiff no. 1 was

put in possession of the suit property pursuant to and after the final decree

dated 22.3.1971.

7. In view of the above, no substantial question of law arises for this

second appeal to be entertained under Section 100 CPC and the same is,

therefore, dismissed, leaving the parties to bear their own costs.

MARCH 10, 2014                                     VALMIKI J. MEHTA, J
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