Harish & Ors. vs Smt. Sarla Devi & Ors.
2014 Latest Caselaw 2578 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No.130/2014

%                                                      20th May, 2014

HARISH & ORS.                                               ..... Appellants
                            Through:      Mr. Atul Bhuchar, Advocate with Mr.
                                          Dinesh Prashar, Advocate.


                            Versus


SMT. SARLA DEVI & ORS.                                       ..... Respondents
                   Through:

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.8864/2014 (exemption)

1.             Exemption allowed subject to just exceptions.

               C.M. stands disposed of.

C.M. No.8865/2014 (condonation of delay)

2.             For the reasons stated in the application, delay of 56 days in re-

filing the appeal is condoned.

               C.M. stands disposed of.


RSA 130/2014                                                    Page 1 of 5
 + RSA No.130/2014 and C.M. No.8863/2014 (stay)

1.             This second appeal is filed under Section 100 of Code of Civil

Procedure, 1908 (CPC) impugning the concurrent judgments of the courts

below; of the trial court dated 6.1.2010 and the first appellate court dated

19.11.2013; by which the suit filed by the respondents/plaintiffs for

possession has been decreed. The suit for possession has been decreed with

respect to the suit land/suit property being 75 sq yds of land situated in plot

no.119, falling in khasra nos.509, 510 and 511 of village Chaukri,

Mubarkabad, Delhi.       Respondents/plaintiffs were also held entitled to

damages of Rs.2,800/- from the appellants (legal heirs of the original

defendant no.1 Sh. Chander Bhan).

2.             Three issues were raised before the courts below and are also

the issues raised before this Court on behalf of the appellants. First issue

urged is that since the suit land had been acquired by the Government under

the Land Acquisition Act, 1894, the respondents/plaintiffs did not remain the

owners and consequently the suit for possession was not maintainable in the

absence of Union of India being added as a party. The second issue which

has been argued is that defendant no.2 died during the pendency of the suit

but since no legal heirs of the defendant no.2 were brought on record, the

suit hence abates as a whole. The third issue which is urged is that as there
RSA 130/2014                                                  Page 2 of 5
 is no specific demarcation of the suit plot and consequently the suit for

possession should not have been decreed.

3.             So far as the first aspect is concerned, it is not and could not be

disputed that the Union of India becomes owner of the acquired land only if

possession is taken under Section 16 of the Land Acquisition Act, 1894. In

Delhi in many cases after the acquisition, the Government did not acquire

(taken possession of) the land because those lands were found to be a part of

illegally built up colonies. In the present case, the courts below note that no

evidence has been led on behalf of the appellant/defendant no.1 of the

Government having taken possession of the suit property, and therefore, the

first argument raised on behalf of the appellant is misconceived and

accordingly rejected because Union of India is not owner of the suit

property.

4.             So far as the second aspect is concerned that the suit should

abate as a whole because defendant no.2 died during the pendency of the

proceedings and his legal heirs were not brought on record, this argument is

without merit because the defendant no.2 was only a proforma party and no

relief was claimed against him.        Defendant no.2 was added as a party

because the defendant no.1/appellant claimed title through the defendant

no.2. Since no relief was claimed against the defendant no.2 and the cause
RSA 130/2014                                                     Page 3 of 5
 of action against the appellants being independent, the suit was entitled to be

decreed for possession. This aspect has been rightly dealt with by the trial

court at pages 30 and 31 of its judgment and which observations read as

under:-

     "During final arguments, counsel for defendant no.1 asserted that
     since suit of plaintiffs had abated against defendant no.2, after his
     death, hence, plaintiffs had no right to claim any relief from
     defendant no.1 & suit shall abate against defendant no.1 also. He
     relied upon judgment of hon'ble Supreme Court in case titled BABU
     SUKHRAM SINGH VS. RAM DULAR SINGH & ORS AIR 1973
     SC 204, in which it was held that where plaintiffs have raised a joint
     claim against all the defendants, death of some of the defendants,
     shall result in abatement of appeal of plaintiff against all the
     defendants, due to failure of plaintiff to implead LRs of deceased
     defendants. But the judgment of hon'ble Supreme Court is not
     applicable to present case, since plaintiff has not sought joint relief
     from both the defendants. Plaintiff claimed no relief from defendant
     no.2, hence, abatement of his suit against defendant no.2 does not
     have any effect upon his claim against defendant no.1. Moreover,
     defendant no.2 had not even filed Written Statement or contested his
     case even during his life time. Hence, it mounted to admission of
     pleadings by defendant no.2. Plaintiffs have claimed all the reliefs
     only from defendant no.1 since defendant no.1 was in actual physical
     possession of suit land at the date of filing the present suit."

5.             I completely agree with the aforesaid conclusion of the trial

court and which has been upheld by the first appellate court inasmuch as on

death of the proforma party against whom no relief is claimed, suit cannot be

abated as against other defendant(s).



RSA 130/2014                                                   Page 4 of 5
 6.             The third argument urged on behalf of the appellants of lack of

demarcation is once again neither here nor there because appellants are

indubitably in possession of the land which has been proved to be in the

ownership of the respondents/plaintiffs. The dispute is with respect to 75 sq

yds out of a larger plot no.119 and which has been demarcated in terms of

the plaint as per the site plan filed. There is therefore no doubt as to the

identity of the plot with respect to which possession has been decreed in

favour of the respondents/plaintiffs.

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

under Section 100 CPC for this appeal to be entertained. Appeal is therefore

dismissed, leaving the parties to bear their own costs.




MAY 20, 2014                                  VALMIKI J. MEHTA, J.

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