Harphool Singh vs Daropti & Ors
2015 Latest Caselaw 7233 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 22nd September, 2015.

+                               RFA No.405/2001

       HARPHOOL SINGH                                       ..... Appellant
                   Through:            Mr. Ashish Kapur, Adv.

                                   Versus

       DAROPTI & ORS.                                     ..... Respondents

                   Through:            Mr. Darshan Paliwal, Adv.

CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 impugns the judgment and preliminary decree dated 18th August, 2001

of partition (of property bearing Municipal no.16/700E, Bapa Nagar, Tank

Road, Dhobi Wali Gali, Karol Bagh, New Delhi which is stated to be

constructed over land ad measuring 45 sq. yds.) in Suit No.34/1991 of the

Court of Dr. Naipal Singh, Additional District Judge, Delhi declaring the

plaintiff in the suit to be entitled to one half share in the property. By the

said judgment and decree, the defendants in the suit were also restrained

from transferring, alienating or parting with possession of the property till

the implementation of the partition.

2. Notice of the appeal was issued and vide ad interim order dated 15th

April, 2002 the Trial Court was restrained from passing the final decree for

partition. The appeal, on 8th October, 2002 was admitted for hearing and the

interim order made absolute. The appeal came up for hearing on

22nd February, 2011 when in the absence of the parties or their counsels the

impugned judgment and decree was set aside and the appeal allowed. The

legal heirs of the plaintiff in the suit preferred Special Leave Petition (Civil)

No.12513/2011 to the Supreme Court which was granted and Civil Appeal

No.7717/2013 was allowed on 2nd September, 2013 and the judgment dated

22nd February, 2011 of this Court allowing the appeal was set aside and the

appeal remanded for decision afresh after hearing the counsels. The counsels

have been heard.

3. The appeal arises from the suit instituted on 18th January, 1991 by

one Shri Beni Prashad being the predecessor in interest of the respondents

no.1 to 6 namely Smt. Daropti, Smt. Rajkumari, Ms. Arti, Master Deepak,

Ms. Puja and Smt. Sushma in the present appeal, pleading,

(i) that the father of Shri Beni Prashad namely Shri Gainda Ram

was the owner of the subject property;

(ii) that the said Shri Gainda Ram died intestate leaving the said

Shri Beni Prashad and Shri Malkhan Singh as his sons and only

legal heirs;

(iii) that as such on the death of Shri Gainda Ram, Shri Beni

Prashad and Shri Malkhan Singh became the equal owners of

the subject property;

(iv) that Shri Malkhan Singh was the elder brother of Shri Beni

Prashad and as such Shri Beni Prashad consented to Shri

Malkhan Singh having his name only entered in the House Tax

records of the subject property but only for the purposes of

Property Tax;

(v) that Shri Malkhan Singh always recognized Shri Beni Prashad

as owner of the property;

(vi) that Shri Malkhan Singh died intestate leaving behind

respondents no.7 to 11 in this appeal namely Smt. Savitri Devi,

Sh. Sunder, Ms. Usha, Master Madan and Ms. Geeta as his only

legal heirs and the half share of Shri Malkhan Singh in the said

property devolved on his legal heirs who became owners along

with Shri Beni Prashad in the property;

(vii) that the appellant namely Shri Harphool Singh had no right,

title or interest in the property but being a distant relative of the

widow of Shri Malkhan Singh had been inducted into the

property by the widow of Shri Malkhan Singh, without the

written consent and permission of Shri Beni Prashad and

against the wishes of Shri Beni Prasahad;

(viii) that the appellant Shri Harphool Singh was thus an

unauthorised occupant of the property; and,

(ix) that since the legal heirs of Shri Malkhan Singh had refused

partition, the suit for the relief of partition and for injuncting the

defendants i.e. the appellant Shir Harphool Singh and the legal

heirs of Shri Malkhan Singh was instituted.

4. The legal heirs of Shri Malkhan Singh failed to appear despite service

and were proceeded against ex parte in the suit. Only the appellant contested

the suit filed by Shri Beni Prashad inter alia on the ground that the subject

property belonged exclusively to Shri Malkhan Singh and that the appellant

Shri Harphool Singh had purchased the subject property from the legal heirs

of Shri Malkhan Singh as per the General Power of Attorney, Agreement to

Sell and other documents executed by the legal heirs of Shri Malkhan Singh.

5. The plaintiff Shri Beni Prashad died during the pendency of the suit

and was substituted by his legal heirs i.e. the respondents no.1 to 6 to this

appeal, who filed a replication to written statement of appellant reiterating

the case in the plaint.

6. The respondents no.1 to 6 / plaintiffs and the appellant / defendant

went to trial on the following issues (the issues were initially framed on 19th

November, 1997 and re-casted as on 19th December, 1998):-

"1. Whether the suit is bad for misjoinder of parties as alleged in para 4 of the preliminary objections is WS? If so to what effect? OPD

2. Whether the suit is properly valued for the purpose of court fee and jurisdiction as alleged in Para 5 of preliminary objections of WS? OPP

3. Whether the defendant is a sole owner of the suit property as alleged in paras No.3 to 6 of the WS? If so to what effect? OPD

4. If issue No.3 is decided in negative, whether the plaintiffs are entitled to the relief of partition as claimed, and further to the relief of injunction as well? OPP

5. Whether the suit for partition without asking for the possession in the circumstances of the case is maintainable? OPP

6. Relief."

7. Of the respondents No.1 to 6 / plaintiffs, only the respondent no.1

Smt. Daropti appeared as a witness. The appellant / defendant Shri Harphool

Singh besides himself examined two other witnesses.

8. The learned Addl. District Judge, by the impugned judgment and

decree:-

A. decided Issue no.1 aforesaid in favour of the respondents no.1

to 6 / plaintiffs holding that though the appellant / defendant

had taken a plea of mis-joinder of parties but without

elaborating and accordingly it was held that the suit was not

bad for mis-joinder of parties;

B. decided Issue no.2 also in favour of the respondents no.1 to 6 /

plaintiffs by holding the suit to be properly valued for the

purposes of Court Fees and jurisdiction;

C. decided Issue no.3 aforesaid against the appellant / defendant

by holding that the appellant / defendant had failed to prove

that Shri Malkhan Singh was the sole owner of the subject

property or that the respondents no. 7 to 11 being the heirs of

Shri Malkhan Singh had sold the subject property to the

appellant / defendant;

D. decided the Issue no.4 aforesaid in favour of the respondents

no.1 to 6 / plaintiffs by holding the respondents no.1 to 6 /

plaintiffs to be entitled to the reliefs of partition and injunction;

E. decided issue no.5 in favour of the respondents no.1 to 6 /

plaintiffs and against the appellant / defendant.

Consequently the preliminary decree for partition and injunction was

passed.

9. The counsel for the appellant / defendant has argued:-

(a) that the learned Addl. District Judge erred in not holding that

onus was upon the respondents no.1 to 6 / plaintiffs to prove

that the subject property was owned by Shri Gainda Ram and

which onus respondents no.1 to 6 / plaintiffs had failed to

discharge;

(b) that the learned Addl. District Judge erred in placing the onus

on the appellant / defendant to prove that Shri Malkhan Singh

was the exclusive owner of the property; and,

(c) that the learned Addl. District Judge erred in deciding the Issue

no.5 against the appellant / defendant; it is contended that the

respondents no.1 to 6 / plaintiffs though in the plaint claimed

the appellant / defendant to be in unauthorised possession of the

property, did not seek the relief of possession against him and

the learned Addl. District Judge cannot in the garb of a decree

for partition direct the appellant / defendant to deliver

possession of half of the property to the respondents no.1 to 6 /

plaintiffs who have been held to be owners of one half share in

the property.

10. The counsel for the respondents no.1 to 6 / plaintiffs has fairly

admitted that the respondents no.1 to 6 / plaintiffs did not prove any

documents showing title of Shri Gainda Ram. It is however his contention

that denial by the appellant / defendant of the pleas of the respondents no.1

to 6 / plaintiffs in the plaint, of Shri Gainda Ram being the owner and Shri

Beni Prashad and Shri Malkhan Singh upon the demise of Shri Gainda Ram

having been equal owners, was not specific as held by the learned Addl.

District Judge. It is further contended that the counsel for the appellant /

defendant in the cross examination of the respondent no.1 / plaintiff

suggested that the predecessor of the respondents no.1 to 6 / plaintiffs

namely Shri Beni Prashad had sold his share in the property to Shri Malkhan

Singh and which amounts to an admission of Shri Beni Prashad and Shri

Malkhan Singh being equal owners of the property, as held by the learned

Addl. District Judge.

11. I have considered the rival contentions and also gone through the

Trial Court record.

12. The respondents No. 1 to 6 / plaintiffs approached the Court with a

case of, the property of which partition was sought being owned by Shri

Gainda Ram and after the death of Shri Gainda Ram having been inherited

equally by Shri Beni Prasad and Shri Malkhan Singh. The claim for half

share of the property was on the said basis. While the heirs of Shri Malkhan

Singh chose not to defend the suit and oppose the said claim of the

respondents No. 1 to 6 / plaintiffs, the appellant, claiming to be the

purchaser of the entire property from the heirs of Shri Malkhan Singh

contested the said claim of the respondents no.1 to 6 plaintiffs. Though the

Ld. Additional District Judge, in the impugned judgment, held the denial in

the written statement of the appellant of the plea in the plaint of Shri Gainda

Ram and after Shri Gainda Ram, Shri Beni Prasad and Shri Malkhan Singh

being the owners of the property to be vague, but on a reading of the entire

written statement I am unable to construe therefrom any admission on the

part of the appellant of Shri Gainda Ram and after Shri Gainda Ram, Shri

Beni Prasad and Shri Malkhan Singh being the owners of the property. A

reading of the entire written statement shows the appellants to have denied

the said plea in the plaint and to have pleaded Shri Malkhan Singh being the

sole owner of the property.

13. In the aforesaid state of pleadings, for the respondents no.1 to 6 /

plaintiffs to succeed in the suit, they ought to have proved the title of Shri

Gainda Ram to the property and if had done the same, a presumption could

have been drawn of, on the demise of Shri Gainda Ram, Shri Beni Prasad

and Shri Malkhan Singh having become equal owners of the property.

Admittedly the respondents no.1 to 6 / plaintiffs did not lead any such

evidence.

14. I have considered the effect if any, of no issue placing such burden on

the respondents no.1 to 6 / plaintiffs having been framed and on the contrary

issue framed, placing the burden on the appellant/defendant to prove that

Shri Malkhan Singh was the sole owner of the property.

15. A perusal of the trial court file shows that the appellant/defendant

indeed filed an application for recasting of the issues inter alia proposing an

issue calling upon the respondents no.1 to 6 / plaintiffs to prove whether the

suit property was ancestral and whether the respondents no.1 to 6 / plaintiffs

were having half share therein. The said application was disposed of vide

order dated 19th December, 1998 though recasting the issues on other

aspects but with respect to the said proposed issue reasoning that the same

need not be framed since the already framed issue i.e. the issue No. 4 herein

above was felt to be sufficient to serve the purpose because the entitlement

to the relief of partition as claimed would emanate only if the respondents

no.1 to 6 / plaintiffs succeeded in proving that the property of which

partition was claimed was ancestral property.

16. It is thus not as if the respondents no.1 to 6 / plaintiffs can be said to

have been misguided, in discharging the onus to prove that the property was

owned by Shri Gainda Ram, owing to the onus having been wrongly placed

on the appellant/defendant to prove that he was the sole owner of the

property.

17. I find that the Ld. Additional District Judge, in the impugned

judgment, under the discussion on issue no.3, after holding that the

appellant/defendant has failed to prove that he was the sole owner of the

property, proceeded to under issue No. 4 presume that if the

appellant/defendant is not the sole owner of the property, the respondent

no.1 to 6 / plaintiffs would axiomatically have a share therein, without

realizing that the respondents no.1 to 6 / plaintiffs had failed to prove the

same. This has resulted in the suit of the respondents no.1 to 6 / plaintiffs

having been decreed without the respondents no. 1 to 6 / plaintiffs having

proved any title to or share in the property which as aforesaid was contested

and was in issue. The Ld. Additional District Judge, in the impugned

judgment, did not notice that vide order dated 19th December, 1998 supra on

the application of the appellant/defendant for recasting of issues it had been

already observed that the respondents no. 1 to 6 / plaintiffs, to succeed in the

suit, would have to prove that the property belonged to Shri Gainda Ram

and Shri Beni Prasad had inherited a share therein. The Ld. Additional

District Judge erroneously held that once the appellant/defendant under issue

No. 3 had failed to prove his sole ownership of the property, it would

axiomatically follow that the respondents no.1 to 6 / plaintiffs have half

share in the property.

18. It is apposite to also notice the reasoning given by the Ld. Additional

District Judge for holding the appellant/defendant to have not proved his

sole title to the property, though in my view, once the respondents no. 1 to 6

/ plaintiffs fail to prove that they have any title to or share in the property

and as a consequence whereof the suit for partition brought by them has to

fail, there is no need for this court to pronounce whether the

appellant/defendant has a title to the property or not.

19. The Ld. Additional District Judge in this regard has held, (i) that the

appellant/defendant claims to have purchased the property from the legal

heirs of Shri Malkhan Singh vide Agreement to Sell, Power of Attorney,

Will, etc and not by way of a sale deed; (ii) however the appellant/defendant

did not disclose the title of the legal heirs of Shri Malkhan Singh or of Shri

Malkhan Singh to the property; (iii) though in the Agreement to Sell sale

consideration paid of Rs. 75,000/- was shown but the appellant/defendant

no.1 in the written statement did not plead having paid the said

consideration; (iv) that the counsel for the appellant/defendant in the cross-

examination of the respondent no.1/plaintiff suggested that Shri Beni Prasad

had sold the property to Shri Malkhan Singh and which clearly proved that

Shri Beni Prasad also had a share in the property; (v) that since the

appellant/defendant in the written statement had not pleaded any such sale

by Shri Beni Prasad to Shri Malkhan Singh, though no credence could be

given thereto but admission could be drawn therefrom; (vi) that since the

appellant/defendant pleaded in the written statement having purchased the

property through the medium of Agreement to Sell, Power of Attorney,

Will, etc, the evidence led to that effect was beyond pleadings and could not

been seen; (vii) that the legal heirs of Shri Malkhan Singh were not

produced to prove the same; (viii) the legal heirs of Shri Malkhan Singh had

chosen not to contest the claim of the respondents no.1 to 6 / plaintiffs of

Shri Malkhan Singh and Shri Beni Prasad being equal owners of the

property; (ix) there could be no sale from the legal heirs of Shri Malkhan

Singh to the appellant/defendant without a registered sale deed. It would

thus be seen that the learned ADJ has not disbelieved the Agreement to Sell,

Power of Attorney etc executed by legal heirs of Shri Malkhan Singh in

favour of appellant/defendant and found to have been proved by the

appellant/defendant. The said documents themselves record that the entire

sale consideration had been paid and possession of the property delivered by

the legal heirs of Shri Malkhan Singh to he appellant/defendant in presence

to the Agreement to Sell. The appellant/defendant would thus be entitled to

protect his possession under Section 53A of the Transfer of Property Act

1881, even though not having a title to the property in the absence of a sale

deed.

20. I reiterate that once the respondents no.1 to 6 / plaintiffs on whom the

onus rested to prove having a share in the property had failed to prove the

same, there is no need for this Court to pronounce on the title if any of the

appellant/defendant to the property. I may however notice that the Division

Bench of this Court in Asha M Jain Vs. Canara Bank 94(2001) DLT 841

held that titles on the basis of Agreement to Sell, Power of Attorney, Will,

etc. have to be recognized by the Court. Supreme Court subsequently in

Suraj Lamp Industries Vs. State of Haryana (2012) 1 SCC 656 set aside

the said view and held that title in a property could be conveyed only in the

manner provided under the Transfer of Property Act and not in any other

manner and no claim for title to the property on the basis of Agreement to

Sell, Power of Attorney, Will, etc, can be entertained.

21. It however cannot be forgotten that the respondents no.1 to 6 /

plaintiffs were not claiming possession of the property from the

appellant/defendant for the reason of the appellant/defendant not having any

title to the property. The respondents no.1 to 6 / plaintiffs were claiming

partition of the property setting up title in a share to the property in their

own favour and which share they were required to prove and which they

have failed to prove. Once the respondents no.1 to 6 / plaintiffs failed to

prove a share in the property, there is to be no adjudication of the capacity in

which the appellant/defendant is in possession of the property.

22. As far as the reasoning given by the Ld. Additional District Judge on

the basis of the suggestion made by the counsel for the appellant/defendant

to the respondent no.1/plaintiff, of Shri Beni Prasad having sold his share in

the property to Shri Malkhan Singh is concerned, the counsel for the

appellant/defendant has explained that the said suggestion came to be made

during the cross-examination on the day when the counsel engaged by the

appellant/defendant was not present and he, a junior at the Bar at that time

working in the chamber of the Advocate engaged by the appellant/defendant

conducted the cross-examination.

23. I tend to agree with the aforesaid explanation. The suggestion made

has no basis whatsoever in the pleadings. Rather, it was the case of the

respondents no.1 to 6 / original plaintiff, being the predecessor in interest of,

in the plaint itself that the mutation of the property in the records of house

tax in the sole name of Shri Malkhan Singh was with his consent. Not only

so, admittedly Shri Malkhan Singh and after the death of Shri Malkhan

Singh his legal heirs alone were in possession of the entire property. Such

errors/mistakes made by youngsters at the Bar, in the process of learning the

ropes of the profession, cannot be allowed to create or defeat titles and

immovable property.

24. I find considerable merit also in the contention of the counsel for the

appellant/defendant of the finding of the Ld. Additional District Judge on

issue No. 5 aforesaid also to be erroneous. It was not the case of the

respondents no.1 to 6 / plaintiffs that the appellant/defendant was in

possession of the entire property as an assignee of the legal heirs of Shri

Malkhan Singh and as a co-owner and that his possession was on behalf of

the other co-owners also. On the contrary the respondents no.1 to 6 /

plaintiffs approached the Court with a categorical assertion of the

appellant/defendant being in unauthorized possession and occupation of the

property. With such a plea, the respondents no.1 to 6/plaintiffs even if were

to succeed on their claim of ownership of half share in the property and to a

decree of partition could not have in pursuance to the said decree of partition

recovered possession of half share of the property from the

appellant/defendant. To be entitled to possession of their share of the

property from the appellant/defendant, the respondents no.1 to 6 / plaintiffs

were required to sue the appellant/defendant for the relief of recovery of

possession, by paying court fees on such half share of the property.

25. Resultantly, the appeal succeeds. The judgment and decree impugned

in the appeal is set aside and the suit of the respondents no.1 to 6 / plaintiffs

is dismissed.

However, no costs.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 22, 2015 'pp/sr'..

(corrected and released on 19th October, 2015)