Rajesh Kumar Pandey vs Shanti Devi & Anr.
2015 Latest Caselaw 2173 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                          R.S.A.55/2007

                                      Decided on : 13th March, 2015

RAJESH KUMAR PANDEY                                  ..... Appellant
                      Through:      Mr.J.K.Singh, Adv.
                           versus

SHANTI DEVI & ANR.                                   ..... Respondent
                      Through:      Mr.Sugreev Dubey, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant/Rajesh Kumar

Pandey.

2. I have heard the learned counsel for the appellant as well as the

learned counsel for the respondents.

3. This court on 08.07.2013 had formulated a question as to whether

the finding returned by the first appellate court is perverse or not.

Although the aforesaid question was framed by the court, however, the

learned counsel for the appellant during the course of the submission has

failed to show to the court as to how the finding of the first appellate

court suffers from any perversity. Before closing the matter, it would be

pertinent here to mention that the appellant had filed suit for partition and

permanent injunction against his brother Sh.Ram Milan Pandey.

4. The case which was set up by him was that their father Sh.Jagdish

Prasad Pandey was the owner of property bearing No.230/22-E, Gali

No.8, Railway Colony, Mandawali, Delhi - 110092 and it was his self

acquired property. Sh.Jagdish Prasad Pandey died in the year 1996 as a

consequence of which both Rajesh Kumar Pandey and Ram Milan

Pandey became co-owners of the suit property and consequently the

appellant had requested his brother to partition the property a number of

times, but the same was not done. It was alleged that Sh.Ram Milan

Pandey wanted to grab the entire property as a consequence of which a

suit had to be filed by the appellant claiming his share. The respondents

contested the claim of the appellant for partition and permanent

injunction and claimed that Smt.Shanti Devi w/o Sh.Ram Milan Pandey

was a necessary party because out of the 62 square yards of land, 42

square yards was purchased by her from Sh.Jagdish Prasad Pandey on

13.12.1995 and the balance which was left out was only 20 square yards

which only was to be co-shared by both Rajesh Kumar Pandey and Ram

Milan Pandey.

5. On the pleadings of the parties, the following issues were framed:

i) Whether the plaintiff is entitled to the half share in the suit property as claimed? OPP.

ii) Whether the defendant No.2 has become the owner of 42 square yards by virtue of purchase from Jagdish Prasad Pandey? OPD.

iii) Whether the suit of the plaintiff has not been properly valued for the purposes of court fees and jurisdiction? OPD.

iv) Relief.

6. The parties were permitted to adduce their evidence and the court

granted a decree of partition of half of the suit property bearing

No.230/22-E, Gali No.8, Railway Colony, Mandawali, Delhi in favour of

the appellant and passed a preliminary decree and also directed that the

aforesaid property be subject matter of partition and for that purpose it

appointed a local commissioner to suggest as to how the property be

partitioned.

7. Sh. Ram Milan Pandey and Smt.Shanti Devi, the respondents

herein, feeling aggrieved by the aforesaid judgment and decree, preferred

an appeal and the first appellate court modified the decree declaring that

Smt.Shanti Devi, wife of Sh.Ram Milan Pandey had purchased 42 square

yards of land vide GPA and other connected documents from Sh.Jagdish

Prasad Pandey, father of Sh.Ram Milan Pandey, and also directed that the

judgment and decree passed by the trial court be accordingly modified to

the extent that instead of parties sharing the entire suit property in

proportion of ½ each, the two sons of Sh.Jagdish Prasad Pandey,

Sh.Rajesh Kumar Pandey (appellant herein) and Sh.Ram Milan Pandey

(Respondent No.1) shall have a equal share in the remaining 20 square

yards of the property with respect to which Sh.Jagdish Prasad Pandey did

not make any testamentary disposition.

8. Sh.Rajesh Kumar Pandey, feeling aggrieved, has preferred the

present regular second appeal. During the pendency of the present

appeal, the apex court in Suraj Lamp & Industries Pvt. Limited v. State of

Haryana & Anr. (2011) 11 SCALE 438 has clearly laid down that before

a right, title or interest in any immovable property is deemed to have been

created, the same has to be done by a registered document and not by an

unregistered document and similarly a person who is basing his claim on

the documents of such a nature, the first and foremost principle is that he

must prove his title by filing a suit for specific performance against the

vendor. In the instant case, there is no dispute about the fact that the suit

property measuring 62 square yards of land was owned by the Sh.Jagdish

Prasad Pandey who died leaving behind two sons namely the present

Sh.Rajesh Kumar Pandey and Sh.Ram Milan Pandey. The learned Civil

Judge has rightly disbelieved the version of Sh.Ram Milan Pandey that

his wife is purported to have purchased 42 square yards of the aforesaid

parcel of land by a document like general power of attorney and,

therefore, she has become the owner of 42 square yards of land. It is

totally strange that in case Sh.Jagdish Prasad Pandey wanted to sell a

portion of the suit property to the wife of one of his sons or to his

daughter in law, then why he would not sell the entire parcel of land but

only half of that land or slightly well over half the land. All these factors

have been considered by the learned Civil Judge in the light of the

evidence which has been produced before it. I do not agree with the

judgment of the first appellate court with regard to holding that the land

was validly purchased by Smt.Shanti Devi, wife of Sh.Ram Milan Pandey

to the extent of 42 square yards is suffering from perversity especially in

the light of the fact that the respondent/Smt.Shanti Devi in the light of the

judgment of the Apex Court in Suraj Lamp's case (supra) has not proved

all such documents as documents of genuine transactions with regard to

conferment of right, title or interest in any immovable property. If that be

so, obviously it could not be considered to be a valid sale and the finding

returned by the learned Civil Judge is perfectly valid that Sh.Rajesh

Kumar Pandey has ½ share in the self acquired property of late

Sh.Jagdish Prasad Pandey. Accordingly, the judgment of the first

appellate court suffers from perversity and the same is set aside and the

judgment and decree passed by the trial court is upheld. The matter is

remanded back to the trial court to apportion the shares in case the

property is divisible as may be suggested by the local commissioner

failing which the same will be disposed of and the sale proceeds

partitioned.

9. With these observations, the appeal is allowed and the order dated

18.11.2006 is set aside.

V.K. SHALI, J.

MARCH 13, 2015 dm