Smt. Meena Bhatnagar vs Smt. Kamlesh Kumari Bhatnagar & ...
2016 Latest Caselaw 2900 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS(OS) No. 841/2012
%                                                    22nd April, 2016

SMT. MEENA BHATNAGAR                                        ..... Plaintiff
                                    Through:   Mr Vinay Sabharwal &
                                               Mr Achin Goel, Advocates.

                           versus

SMT. KAMLESH KUMARI BHATNAGAR & ORS.         ..... Defendants
                       Through: Mr. S K Sharma, Mr. Rahul
                                Sharma, Mr. Prayas,
                                Advocates for defendant
                                nos. 1 to 9 & 12 to 14
                                Mr. S. Sehgal, Advocate for
                                D-10,15 & 16.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

This is a suit for partition, rendition of accounts, injunction

etc filed by the plaintiff Smt. Meena Bhatnagar, who is the daughter of Sh.

Sohan Lal Bhatnagar and the granddaughter of Sh. Mool Chand

Bhatnagar. Sh. Sohan Lal Bhatnagar was one of the sons of Sh. Mool

Chand Bhatnagar with the other son being Sh. Kundan Lal Bhatnagar.

2. As per the plaint, the plaintiff claims that the two suit

properties, namely, 83-UB, Jawahar Nagar, Delhi and 13-F, Kamla Nagar,

Delhi are liable to be partitioned on account of the fact that these

properties were the HUF properties in the hands of late Sh. Mool Chand

Bhatnagar as they were purchased by Sh. Mool Chand Bhatnagar from the

funds received by him as compensation from the Government of India,

Rehabilitation Department on account of the ancestral properties left in

Pakistan. In the replication the plaintiff has taken a totally different

pleading that the properties were purchased out of the funds of the sale of

the ancestral properties left in Pakistan i.e not from the funds received

from the Rehabilitation Department.

3. Therefore, reading of the plaint shows pleadings on behalf of

the plaintiff that the plaintiff states that Sh. Mool Chand Bhatnagar

received Rs.2,50,000/- as compensation from the Government of India,

Ministry of Rehabilitation in lieu of the ancestral property left in Pakistan,

however, when the contesting defendant nos. 9, 12, 13 and 14/defendant

nos.1 to 4 filed the written statements pointing out that the two suit

properties were purchased by Sh. Mool Chand Bhatnagar even prior to

partition in the year 1947 i.e property no.13-F, Kamla Nagar, New Delhi

was purchased by an Agreement dated 01.05.1942 from the Municipal

Committee of Delhi and property No.83-UB, Jawahar Nagar, Delhi was

purchased by a Sale Deed dated 26.01.1945 from one Smt. Oma Kapoor,

in the replication filed by the plaintiff to this para of the written statement,

a totally new case is set up by the plaintiff stating that even if the

properties are not purchased from the moneys received from the Ministry

of Rehabilitation, yet, these properties were purchased by Sh. Mool Chand

Bhatnagar from the funds received from the ancestral properties of Sh.

Mool Chand Bhatnagar. Therefore, the plaintiff has given a total go by to

the case set up in the plaint of having purchased the two properties from

the compensation received from the Ministry of Rehabilitation from the

ancestral properties left in Pakistan on partition in 1947. No doubt, an

alternative case can be set up as per the pleadings but mutually destructive

cases cannot be set up. The case set up by the plaintiff in the plaint, when

taken in terms of the replication filed by the plaintiff, both the stands

became mutually destructive inasmuch as the two suit properties cannot be

purchased on account of moneys received from the Ministry of

Rehabilitation as also on account of moneys received from the sale of

ancestral properties in Pakistan.

4. Not only the plaintiff has set up wholly inconsistent cases as

per her pleadings, the suit filed deliberately and vaguely talks of

entitlement of plaintiff to cancellation of certain documentation alleging

them to be forged and fabricated and without at all stating what these

documents are with respect to which cancellation is sought by the plaintiff.

The vagueness of this case of seeking cancellation of documents, and

which documents are alleged to be forged and fabricated, becomes clear

from the averments made in paragraphs 20 and 21 of the plaint read with

prayer clause (c), and these paragraphs 20 and 21 with prayer clause (c)

read as under:-

"20. That the Plaintiff has also come to know that the Defendants in collusion with each other have restored to forgery, fabrication and misappropriation of some documents in order to create rights in their favour which are required to be cancelled.

21. That it is also pertinent to mention here that Defendant No.12 and 13 especially have also forged and fabricated several documents to show themselves as the owner of the property. They have concealed and withheld all such documents and vital information with regard to the suit property in order to deprive the plaintiff and other defendants and usurp the suit property.

                                        xxxxx
                                        xxxxx
             (c)      Order/decree for cancellation of all such

documents forged and fabricated by any/all Defendants till date in order to get the suit property in her/his own name, to withdraw money from the accounts of Late Sohan Lal Bhatnagar and all such documents etc. being detrimental to the rights and interests of the Plaintiff and other legal heirs in order to frustrate their legitimate claims vis-a-vis the suit property."

5. The contesting defendants 9, 12, 13 and 14 have filed the

written statement stating as to how the suit is a gross abuse of the process

of law because of the fact that the brother of the plaintiff Sh. Mohan Lal

Bhatnagar, who is defendant no.10 in the present suit, had with respect to

the suit property at 83-UB, Jawahar Nagar, Delhi, filed a suit on more or

less identical facts claiming that this property was the ancestral property

and he was claiming share therein, and in that suit after framing of issues

and leading of evidence [CS(OS) No.1369/2003], that suit was dismissed

by a Judgment of a learned Single Judge of this Court dated 14.09.2010.

Defendant no.10 in the present suit, Sh. Mohan Lal Bhatnagar brother of

the plaintiff, filed an appeal before the Hon'ble Division Bench of this

Court being RFA(OS) No.122/2010 and which appeal was also dismissed

by the Hon'ble Division Bench vide its Judgment dated 18.11.2011 with

costs. Immediately after dismissal of the earlier proceedings, plaintiff who

is the sister of Sh. Mohan Lal Bhatnagar has filed the present suit seeking

partition of the two properties, including the property at 83-UB, Jawahar

Nagar, Delhi, which was the subject matter of CS(OS) No.1369/2003 and

RFA(OS) No.122/2010. The defendant nos. 9, 12, 13 and 14 therefore

plead that there is gross harassment on account of collusion between the

plaintiff and her brother Sh. Mohan Lal Bhatnagar/defendant no.10 in the

present suit and plaintiff in CS(OS) No.1369/2003 as the present suit is

filed in February, 2012 soon after the dismissal of the suit filed by Sh.

Mohan Lal Bhatnagar.

6. This suit is presently at the stage of framing of issues, and

when the suit came up for framing of issues on 10.02.2016, this Court

passed the following order:-

"1. Counsel for the plaintiff has been put to notice that suit plaint would lack cause of action especially in view of the judgment delivered by this Court in the case of Sh. Surender Kumar Vs. Sh. Dhani Ram and Others in CS(OS) No.1737/2012 decided on 18.1.2016. This judgment

will apply with the additional reason that pleading bland averments of existence of HUF cannot mean that HUF is created because creation of HUF has to be by specific particulars which are to be stated as per the mandate of law contained in Order 6 Rule 4 CPC. Also as seen from the pleadings of the defendants, the effect of the suit is to challenge title of a person which vested in that person namely the ancestor Sh. Mool Chand by a registered title deed of the year 1942 and 1945 and the said Sh. Mool Chand thereafter transferred the suit properties by registered gift deeds of the year 1953 in favour of his daughters-in-law, i.e, effectively this suit filed in the year 2012 questions issues which attained finality by means of registered documents almost over 65 years back.

2. At this stage, counsel for the plaintiff seeks time to take instructions. It is made clear that though this suit is adjourned, in case no instructions are forthcoming, appropriate orders will be passed in the suit which was listed today for framing of issues. Issues need not be framed if issues do not arise.

3. List on 22nd April, 2016." (underlining added)

7. A reading of the Order dated 10.02.2016 shows that the

plaintiff was put to notice with respect to non-maintainability of the suit

inasmuch as effectively the plaintiff was challenging the documents by

which Sh. Mool Chand Bhatnagar was the sole owner of the suit properties

with the title documents pertaining way back to the years 1942 and 1945

and also of subsequent documentation of registered Gift Deed dated

17.08.1953 by Sh. Mool Chand Bhatnagar in favour of his daughter-in-law

Smt. Kamlesh Kumari Bhatnagar (defendant no.9) and further Sale Deed

dated 29.07.2002 by Smt. Kamlesh Kumari in favour of Smt. Sangeeta

Bhatnagar (defendant no.13). It is already noted above that the present suit

is filed in February, 2012.

8(i). No doubt, the earlier judgment passed in CS(OS)

No.1369/2003 would not operate as res judicata against the plaintiff

inasmuch as the plaintiff was not a party to the suit, but, plaintiff

admittedly is the sister of defendant no.10/Sh. Mohan Lal Bhatnagar who

had filed the earlier suit which was dismissed and appeal against the

judgment dismissing the suit, was also dismissed. What is being stated by

this Court is that the plaintiff is also effectively claiming the same rights

and cause of action which were claimed and pleaded by the defendant

no.10 in the suit in CS(OS) No.1369/2003.

(ii) The issue is whether the judgment in the earlier suit holding

the ownership of the suit property at 83-UB, Jawahar Nagar, Delhi, to be

originally of Sh. Mool Chand Bhatnagar and thereafter Smt. Kamlesh

Bhatnagar and Smt. Sangeeta Bhatnagar in terms of the Gift Deed dated

17.08.1953 and the Sale Deed dated 29.07.2002, can be a basis for

dismissing the present suit.

(iii) The answer to that is clearly in affirmative in terms of the

two judgements of the Hon'ble Supreme Court in the cases of Sital Das

Vs. Sant Ram and Ors., AIR 1954 SC 606 and Shrinivas Krishnarao

Kango Vs Narayan Devji Kango and Ors., AIR 1954 SC 379. These

judgments of the Hon'ble Supreme Court have held that even if a person is

not a party to a judgment, but once an earlier judgment gives title of a

property to a particular person, such judgment is relevant for arriving at a

decision with respect to the decision of the title of the property in a

subsequent suit in view of Section 13 of the Indian Evidence Act, 1872. I

have had an occasion to consider this issue in the judgment of the case of

Bhagwat Parshad Aggarwal Vs. Hans Raj Banga (Deceased) & Anr.,

2012 (190) DLT 203. The relevant para of this judgment is para 8 and

which para reads as under:

"8. I may note that though a judgment may not be inter parties and yet the same is binding on a person who is not a party to the earlier litigation when the issue of title is decided in the earlier litigation. Two Division Benches of the Supreme Court, of four Judges and three Judges, in the cases of Sital Das Vs. Sant Ram and Ors. AIR 1954 SC 606 and Shrinivas Krishnarao Kango Vs. Narayan Devji Kango & Ors. AIR 1954 SC 379 have so held that a judgment which holds that a person is an owner, such a judgment is very much admissible in evidence to show assertion of title inasmuch as the judgment is a transaction pertaining to the subject matter of the dispute under Section 13 of the Indian Evidence Act, 1872. In my opinion, this is another reason to hold that respondent No.1/plaintiff is owner of the subject property, and the challenge which is led by the appellant/objector is without any basis."

9. Clearly therefore, the suit is liable to be dismissed by

applying the provision of Section 13 of the Indian Evidence Act read with

the ratios of the judgments of the Supreme Court in the cases of Sital Das

(supra) and Shrinivas Krishnarao Kango (supra). The suit is also liable

to be dismissed by applying the spirit and rationale of Order VI Rule 4

CPC, inasmuch as if the plaintiff claims that the two suit properties were

purchased out of the ancestral properties left by Sh. Mool Chand

Bhatnagar in Pakistan, then the plaintiff was mandatorily bound to plead

and give necessary particulars and elaborate as a sine qua non pleading

and a cause of action as to which were the properties in Pakistan which

were ancestral properties owned by Sh. Mool Chand Bhatnagar and sold

by him to buy the suit properties. This is however not done in the plaint,

and obviously therefore, a cryptic and the bare statement cannot be held by

courts to be complete averments of a cause of action as required by law. If

courts are forced to accept vague pleadings as a complete cause of action

then all that a plaint will have to do is vaguely plead ancestral properties

left in Pakistan, without stating what and where these properties were, and

defendants will be forced to contest totally a frivolous suit although there

never were any ancestral properties in Pakistan. This is not the intent of

law, especially Order VI Rule 4 CPC which requires pleading of a

complete cause of action. As is stated above, plaintiff has given up the

case set up in the plaint that the two suit properties were purchased out of

the funds received from the Ministry of Rehabilitation, and, the case of the

suit properties having been purchased from the sale of the ancestral

properties in Pakistan is a totally new case set up in the replication, and

which new case is mutually destructive of the case which is set up in the

plaint that both the suit properties having been purchased from the moneys

received from the Ministry of Rehabilitation for ancestral property left in

Pakistan. The second case set up in the replication of moneys received

from the sale of ancestral properties in Pakistan is bereft of the necessary

particulars. The defendant nos. 9, 12, 13 and 14 thus cannot be harassed by

such pleadings which effectively cannot be said to be a complete cause of

action in the eyes of law for the plaintiff to claim partition of the two suit

properties.

10. It is also further noted that if the plaintiff is allowed to

continue with the present suit, it would amount to plaintiff challenging in

the year 2012 the gift deed which was executed by Sh. Mool Chand

Bhatnagar in favour of his daughter-in-law Smt. Kamlesh Kumari

Bhatnagar as back as on 17.08.1953 i.e 60 years prior to filing of the

present suit. Obviously the suit is an abuse of the process of law and as

already stated above, it was filed immediately after the dismissal of the

suit and appeal filed by the plaintiff's brother Sh. Mohan Lal Bhatnagar

who is defendant no.10 in the present suit.

11. In the judgment delivered by this Court in the case of

Surender Kumar Vs. Dhani Ram and Others 227(2016) DLT 217, this

Court has referred to the provision of Order VI Rule 4 CPC for observing

that unless all the essential ingredients of a cause of action are stated in the

plaint, vague averments cannot be allowed to be called a complete cause

of action for filing and maintaining a suit for partition of alleged HUF

properties. In para 12 of that judgment, this Court has also observed as to

how the courts are flooded with litigation where only incomplete

averments are made in the plaint of existence of an HUF, without in any

manner pleading therein all the necessary required factual details of a

cause of action for the plaintiff to claim a share as a coparcener in an

HUF. The said observations are apposite for being applied to the facts of

the present case, especially in view of the earlier false litigation initiated

by the brother of the plaintiff Sh. Mohan Lal Bhatnagar/defendant no.10 in

the present suit having essentially the same pleading/plaint of the present

suit and which has been dismissed as already detailed above.

12. In view of the above, the plaint not only discloses no cause of

action as required by law and Order VI Rule 4 CPC and that this suit is

also liable to be dismissed by applying the provisions of Order XII Rule 6

CPC read with Section 13 of the Indian Evidence Act. The suit is also

liable to be dismissed on account of mutually destructive cases set up in

the plaint and the replication which destroy the very foundation and basis

of a cause of action for the plaintiff to claim rights in the suit property.

13. The subject suit is therefore dismissed with actual costs.

Defendants in the suit will file an affidavit of costs incurred by them in

this suit supported by the certificate of lawyers of the fees received by

them within a period of four weeks from today, and costs as stated in these

affidavits supported by the certificate of lawyers, will be payable by the

plaintiff to each of the defendants with respect to the costs incurred by

these defendants.

APRIL 22, 2016                                 VALMIKI J. MEHTA, J
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