Mohd Zaheen & Ors vs Hajra Begum & Ors
2015 Latest Caselaw 5942 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Date of Pronouncement: 14.08.2015
+     CS(OS) 611/2012

      MOHD ZAHEEN & ORS                               ..... Plaintiff
                      Through        Mr.Himal Akhtar, Adv.
               versus
      HAJRA BEGUM & ORS                                 ..... Defendant
                      Through        Mr.Mohsin Isarily, Adv.

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No.9152/2014

1. The present application is filed under Order 12 Rule 6 CPC seeking judgment on admission and dismissal of the present suit. The plaintiff has filed the present suit seeking a decree of declaration that the suit property being No.6540-6539 with joint staircase with property No.6541, back side No.6447 Ilaqa No.13, Gali Ishwari Prasad, Katra Dhobi, Bara Hindu Rao, Delhi-110006 built up plot total area measuring 175-1/4 Sq.Yds comprising of four floors be declared as joint undivided property of the parties. The Suit also seeks preliminary decree of partition and other connected reliefs.

2. It is the contention of the plaintiffs that plaintiffs' father Shri Mohd.Sualeheen alongwith his two brothers purchased half undivided portion of the aforesaid property vide registered sale deed dated 13.12.1960. On the death of father of the plaintiffs' i.e. Shri

Mohd.Sualeheen on 5.12.1983, he was survived by the plaintiffs and four daughters. In due course of time the real brothers of the father also expired. A family settlement took place on 23.2.2012 between the Legal Heirs of the father late Shri Mohd.Sualeheen and the legal heirs of his two brothers with regard to the suit property. As per the settlement the Legal Heirs of the two brothers and daughters of the father of the plaintiff left their shares in respect of the suit property in favour of the plaintiffs. Hence, it is claimed that the plaintiffs have become lawful owner of half share in joint undivided property.

3. It is further averred that late Shariat-ullah was the owner of the remaining half share of the suit property. After his death his son Late Jameel-ur-Rehman became the owner. After his death the defendants No.1 to 8 inherited his rights. Hence, it is averred that plaintiffs and defendants are joint undivided owners of the suit property.

4. It is further averred that with the purchase of the suit property by the predecessor of the plaintiff the tenancy of Mohd.Hashim @ Hashim Ali came to the share of the predecessor of the plaintiffs. The father of plaintiffs was collecting rent from the said tenant. After his death the mother of plaintiffs was collecting rent from him. However, it is urged that recently defendant No.5 has trespassed into the tenanted premises with the connivance of the said tenant.

5. The defendants No.1 to 5, 7 and 8 have filed a joint written statement and counter-claim. They have in the counter-claim claimed a decree of declaration to the effect that the said defendants are in possession and owners of portions shown in the plan being part of first floor, second floor and third floor of suit property No.6540 and 6541,

Ward No.13, Bara Hindu Rao, Delhi-06. The written statement asserts that their ownership is by way of an adverse possession. It is further averred that on 27.10.1990 a suit regarding the first floor of the suit property, which was preferred by the predecessor of the defendants was compromised and vide Memorandum of Possession dated 7.12.2011 possession was taken over. Thereafter the said defendants have as exclusive owners carried out construction on part of the first floor, second floor and third floor of the suit property 6540-41. The written statement further states that the plaintiffs have utilised the complete portion of the ground floor, part of first floor and part of second and third floor as per their requirement and have permitted the said defendants to use the balance portions of the first floor and to raise construction on the said first floor, second floor and third floor. The said defendants claim to be in exclusive use and possession of the said area for last more than five decades and hence it is urged that they have perfected their adverse possession on that portion.

6. Defendant No.6 has filed a separate written statement.

7. In the light of the above, the defendants have filed the present application under Order 12 Rule 6 CPC. It is urged in the application that the plaintiff had sent a legal notice to the defendant on 15.2.2012. In response a reply was sent to the plaintiffs by defendants on 24.2.2012. It is urged that in the course of admission/denial of documents the plaintiff has admitted the said reply to the legal notice sent by the defendant dated 24.2.2012 which is marked as Ex.D-1. It is urged that the written statement filed by the defendants is based on the reply dated 24.2.2012. As the plaintiff has admitted the case of the defendants hence nothing is

left for adjudication and a judgment can be passed on admissions made by the plaintiff.

8. I have heard learned counsel for the parties and perused the record. Learned counsel for the defendant has relied upon Sushil Bhardwaj vs. Ved Prakash Shastri & Ors., 163 (2009) DLT 287 and Uttam Singh Dugal & Co. Ltd. vs. Union Bank of India & Ors., AIR 2000 SC 2740 to contend that on admissions a decree is liable to be passed.

9. Learned counsel for the plaintiff has, however, stressed that unless there is a clear admission by the parties no decree can be passed. He also points out that the plaintiff has also filed IA No.9701/2014 where it was clarified that the admission/denial made by the plaintiff with regard to the reply dated 24.2.2012 only pertained to the service of the said reply and not to the document Ex.D1.

10. Order 12 Rule 6 CPC reads as follows:-

"6. Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

11. It is noteworthy that in the plaint filed the plaintiff has in paragraph 9 noted that the defendant has sent a reply dated 24.2.2012 to the legal notice sent by the plaintiff. The said reply is described as "false reply". It

is further averred in the plaint that in view of this false reply the plaintiffs had no option but to file the present suit.

12. Reference may be had to the judgment in the case of Himani Alloys Ltd. vs. Tata Steel Ltd., 2011(3) RCR (Civil) relevant paragraph of which reads as follows:-

"10. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a Defendant to contest the claim. In short the discretion should be used only when there is a clear 'admission' which can be acted upon."

13. In the case of Vijay Mayne vs. Satya Bhushan Kumar, 142 (2007) DLT 483 the Division Bench of this High Court on the issue of admissions held as follows:-

"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient

to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely, in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored."

14. For the purpose of admission we have to see the entire pleadings and documents placed on record. The plaint categorically states that the reply to the legal notice dated 24.2.2012 is a false reply. In the light of these facts, merely because the legal notice has been admitted cannot imply unequivocal, categorical admission of the claim of the defendant by the plaintiffs. It also cannot be forgotten that the plaintiffs have filed a replication to the written statement filed by the said defendants where there is a categorical denial of the written statement and the counter- claim.

15. It may also be noticed that the property which is described in the plaint is No.6540-6539 with joint staircase with property No.6541, back side No.6447 Ilaqa No.13, Gali Ishwari Prasad, Katra Dhobi, Bara Hindu

Rao, Delhi-110006 built up plot total area measuring 175-1/4 Sq.Yds comprising of four floors. In contrast, the reply to the legal notice is dealing only with the premises No.6541, First Floor, Ward No.13, Main Road, Bara Hindu Rao, Delhi.

16. Hence, the reply to the legal notice is dealing with only a part of the property which is subject matter of the plaint. The said averments as contained in the said reply do not negate the entire claim of the plaintiff.

17. I also cannot ignore that the defendants are claiming title to a part of the suit property based on adverse possession. Adverse possession is a question of fact which will have to be proved by the defendants. Mere uninterrupted possession for long period does not amount to adverse possession per se.

18. Further, the plaintiff has filed I.A. 9701/2014 where it is sought to be clarified that the admission/denial made by the plaintiff is with regard to receipt of the reply and not its contents. Normally an admission can be explained. In 'Nagubai Ammal and Ors.v.s B. Shama Rao and Ors.' AIR 1956 SC 593 the Supreme Court held as follows:-

"16. An admission is not conclusive as to the truth of the matters stated the rein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous and untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. ...."

19. Hence there is no merit in the contention of the plaintiffs that admission in the course of admission/denial by the plaintiffs implies

admission of the defence of the defendants. There is no merit in the present application and the same is dismissed.

CS(OS)611/2012

20. List before Joint Registrar for further proceedings on 28.08.2015.

(JAYANT NATH) JUDGE AUGUST 14, 2015 n