Chander Mohan Sharma vs Jagdish Prasad Sharma
2016 Latest Caselaw 1076 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Date of decision: 11th February, 2016.
+                  RFA 288/2015 & CM No.8108/2015 (for stay)
       CHANDER MOHAN SHARMA                     ..... Appellant
                  Through: Mr. Hameed S. Shaikh, Adv.
                                  Versus
    JAGDISH PRASAD SHARMA                     ..... Respondent

Through: Mohd. Shariq, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The appeal impugns the judgment and decree dated 21 st January, 2015

of the Court of Additional District Judge (ADJ)-02 (Central), Tis Hazari

Courts, Delhi decreeing the suit (CS No.39/2013 bearing Unique ID

No.02401C0444072012) filed by the respondent / plaintiff against the

appellant / defendant for recovery of possession of immovable property and

for mesne profits / damages for use and occupation at the rate of Rs.3,000/-

per month from the date of judgment and decree till delivery of possession.

2. Notice of the appeal was issued and thereafter the parties were

referred to the Mediation Cell of this Court. Mediation remained

unsuccessful and vide order dated 5th November, 2015 the appellant /

defendant was directed to deposit / pay mesne profits in terms of judgment

and decree. The Trial Court record was also requisitioned.

3. Admit.

4. Considering that the appellant / defendant is the son of the respondent

/ plaintiff and the respondent / plaintiff is aged about 84 years and there are

allegations of harassment of the respondent / plaintiff by the appellant /

defendant owing to residence in the same premises, it is deemed appropriate

to take up this appeal for final hearing at this stage itself.

5. The counsel for the appellant / defendant has been heard and the trial

Court record perused. The need for calling upon the counsel for the

respondent / plaintiff to address argument has not arisen.

6. The respondent / plaintiff on 20th September, 2012 instituted the suit

from which this appeal arises pleading:

(i) that the respondent / plaintiff is the sole and absolute owner of

two and a half storied property bearing Municipal No.1371-73

and 1375-77 situated at Krishna Gali, Bazar Guliyan, near

Dariba Kalan, Delhi and that it is the self acquired property of

the respondent / plaintiff;

(ii) that the said property was purchased by the respondent /

plaintiff in public auction held on 28 th October, 1961 vide

Certificate of Sale dated 3rd September, 1962;

(iii) that the appellant / defendant being the eldest son of the

respondent / plaintiff had been residing in the premises along

with the respondent / plaintiff and occupying one room, one

store, one kitchen and common courtyard on the first floor of

the property no.1375-77 and the remaining property is in

occupation of the respondent / plaintiff, his wife and other

children;

(iv) that there have been differences between the appellant /

defendant, his wife and children and the respondent / plaintiff

and the remaining family leading to constant bickering in the

residential house;

(v) that since January, 2012, the conduct of the appellant /

defendant and his wife and sons had become very harsh and

insulting towards the respondent / plaintiff and of which

complaints were also lodged with the police but to no avail;

(vi) that in the circumstances, the respondent / plaintiff vide legal

notice dated 28th January, 2012 terminated the licence of the

appellant / defendant to reside in the premises and called upon

the appellant / defendant to vacate the premises;

(vii) that the appellant / defendant failed to comply with the legal

notice and hence the suit.

7. The appellant / defendant contested the suit by filing a written

statement pleading:

(a) that the subject property was purchased in auction held by the

Rehabilitation Department on 28th October, 1961 by the

respondent / plaintiff and one Sh. Ram Parshad Sharma but in

the name of the respondent / plaintiff; the auction value was

paid by both in equal share;

(b) that the respondent / plaintiff upon migration from Pakistan was

staying along with his mother (grandmother of the appellant /

defendant) who was employed in a hospital at Delhi and the

mother of the respondent / plaintiff had given the money to the

respondent / plaintiff to purchase the property in his name,

being the son;

(c) that the respondent / plaintiff at that time i.e. in the year 1961

was not in a financial position to himself pay the purchase

consideration;

(d) that Sh. Ram Parshad Sharma in or about the year 1963 filed a

suit for partition of the subject property and in which suit a

preliminary decree for partition was passed on 14 th January,

1966 and the first appeal and the second appeal preferred

thereagainst dismissed on 3rd October, 1966 and 10th July, 1972

respectively; ultimately in accordance with the final decree for

partition, a mutual auction was held in the year 1976 and in

which the value of the entire property was ascertained at

Rs.52,000/-, half of which had to be paid by the respondent /

plaintiff to Sh. Ram Parshad Sharma; again the mother of the

respondent / plaintiff (i.e. grandmother of the appellant /

defendant) contributed in making the said payment to Sh. Ram

Parshad Sharma;

(e) that thus the nature of the property is ancestral as the payment

therefor had been made by the mother of the respondent /

plaintiff i.e. the grandmother of the appellant / defendant and

the respondent / plaintiff is thus not the absolute owner of the

property and the appellant / defendant is in occupation of the

property in his own right;

(f) that the property in the year 1961 was auctioned under Section

20 of the Displaced Persons (Compensation and Rehabilitation)

Act, 1954 and was for the benefit of the family of the

respondent / plaintiff including the appellant / defendant;

(g) that the respondent / plaintiff for family arrangement had orally

partitioned the property and in which partition, the portion of

the property in occupation of the appellant / defendant had

fallen to the share of the appellant / defendant;

(h) that the appellant / defendant had also made contribution

towards litigation expenses for evicting the tenants earlier in

occupation of part of the property;

(i) that the suit is bad for non-joinder of the other sons of the

respondent / plaintiff i.e. the brothers of the appellant /

defendant.

8. Needless to state that the respondent / plaintiff filed a replication

denying the defences of the appellant / defendant.

9. On the pleadings aforesaid of the parties, the learned ADJ on 22 nd

May, 2013 framed the following issues:

"1. Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties? OPD

2. Whether the suit property had already been partitioned pursuant to an oral agreement arrived at between the plaintiff, defendant and other sons of the plaintiff? OPD

3. Whether the plaintiff is entitled to a decree of possession in respect of the suit property comprising of one room, one store, one kitchen and common courtyard on the first floor of property bearing no.1375, Krishna Gali, Bazar Guliyan, Delhi? OPP

4. Whether the plaintiff is entitled to a decree of damages / mesne profits against the defendant @ Rs.6,000/- per month w.e.f. February, 2012 till actual handing over of the possession of the suit property to the plaintiff by the defendant? OPP

5. Relief."

and on the basis of the pleadings and the evidence led by the parties

including oral evidence has decided all the issues in favour of the respondent

/ plaintiff and decreed the suit as aforesaid.

10. On an analysis of the written statement of the appellant / defendant to

the suit, I am of the view that the suit should have been decreed under Order

XII Rule 6 CPC i.e. on admissions or under Order XV i.e. the written

statement of the appellant / defendant not disclosing any triable issue, and

there was no need even for going through the rigmarole of framing of Issues

and recording of evidence.

11. The counsel for the appellant / defendant before me has argued on the

same lines as pleaded in the written statement.

12. The counsel for the appellant / defendant though has reiterated the

plea as taken in the written statement, of Section 20 of the Displaced

Persons Act, but has been unable to support the same.

13. From a analysis of the aforesaid written statement of the appellant /

defendant, the appellant / defendant by pleading that the property has been

purchased in auction in the year 1961 in the name of the respondent /

plaintiff, though the purchase consideration thereof was contributed equally

by the respondent / plaintiff and Sh. Ram Parshad Sharma and by further

pleading that in a suit for partition between Sh. Ram Parshad Sharma and

the respondent / plaintiff, the respondent / plaintiff had acquired the share of

Sh. Ram Parshad Sharma, has admitted the absolute ownership of the

respondent / plaintiff of the property on the date of institution of the suit.

14. As far as the plea of the appellant / defendant, of the grandmother of

the appellant / defendant i.e. the mother of the respondent / plaintiff having

contributed the purchase consideration for the property at both times i.e. at

the time of purchase in auction in the year 1961 as well as at the time of

purchasing the share of Sh. Ram Parshad Sharma in the year 1976, is

concerned, the same would not make the grandmother of the appellant /

defendant i.e. the mother of the respondent / plaintiff the owner of the

property. Such a plea is contrary to Section 4 of the Benami Transactions

(Prohibition) Act, 1988 and was / is barred. Even otherwise, a person from

whom the purchaser may have received the purchase consideration, does not

acquire any right in the property which is only of the person in whose name

the property is purchased / registered. I have in K.L. Garg Vs. Rajesh Garg

MANU/DE/0321/2013 held that the contributor of the purchase

consideration does not become the owner of the property.

15. The only other defence of the appellant / defendant was of the

property being ancestral owing to the purchase consideration having been

contributed by the mother of the respondent / plaintiff and the grandmother

of the appellant / defendant. Though I have hereinabove held that thereby

the grandmother of the appellant / defendant did not become the owner of

the property and it cannot be said that the respondent / plaintiff has

succeeded to the property from his mother but I may state that even if the

same were to be believed, the same also does not vest any right in the

property in favour of the appellant / defendant. The settled position under

the Hindu Succession Act, 1956 (it is not in dispute that the parties are

Hindus) is that succession, after the coming into force the said Act on 17th

June, 1956 is in accordance therewith and not otherwise. This Court recently

in a judgment dated 18th January, 2016 in CS(OS) No.1737/2012 titled

Surender Kumar Vs. Dhani Ram & Ors. and relying on Commissioner of

Wealth Tax, Kanpur Vs. Chander Sen (1986) 3 SCC 567, Yudhishter Vs.

Ashok Kumar (1987) 1 SCC 204 and a host of other judgments has

reiterated the said position.

16. Though Section 6 of the Hindu Succession Act carves out an

exception qua a Joint Hindu family governed by the Mitakshara law but it is

not the pleaded case of the appellant / defendant that there was any Joint

Hindu family or a coparcenary governed by the Mitakshara law. Moreover,

for a property to be ancestral within the meaning of the said provision the

succession thereof has to be through male lineage i.e. from the father of the

respondent / plaintiff and not from the mother as was / is the pleaded case of

the appellant / defendant. Reference in this regard can be made to

Saraswathi Ammal Vs. Anantha Shenai AIR 1966 Kerala 66 and to

Sellamam Ammal Vs. Thillai Ammal AIR 1946 PC 185.

17. I must state that the defence of the appellant / defendant and the

argument even today before this Court is as a result of common

misconception which seems to prevail qua ancestral property with umpteen

number of suits being filed on the premise that since the father had inherited

the property from the grandfather, the plaintiff therein would have a share.

18. It is for the reasons aforesaid that I say that the written statement of

the appellant / defendant on a perusal thereof did not show any triable issue

and the suit ought to have been decreed without being required to be put to

trial.

19. At this stage, the counsel for the appellant / defendant reminds that it

was also the plea of the appellant / defendant that there had been an oral

partition of the property.

20. The question of oral partition arises only between persons having a

pre-existing right / share in the property. In the present case, the appellant /

defendant is not found to be having any pre-existing right or a share

whatsoever in the property which could have been partitioned. The plea of

oral partition also was thus misconceived.

21. Supreme Court, in Bhoop Singh Vs. Ram Singh Major (1995) 5 SCC

709 held that if a decree were to create for the first time, right, title or interest

in immovable property in favour of any party to the suit, the decree or order

would require registration. Subsequently, in Som Dev Vs. Rati Ram (2006) 10

SCC 788 it was held that it is the duty of the Court in each case to examine

whether the parties had a pre-existing right in the immovable property or

whether under the order or decree of the Court, one party having right, title or

interest in the immovable property is agreeing to suffer or to extinguish the

same and create a right in praesenti in an immovable property in favour of

another for the first time by compromise or admission. Recently, a Division

Bench of the High Court of Hyderabad also in K. Bhoom Reddy Vs. The Land

Acquisition Officer MANU/AP/0150/2015 held that admissions of ownership

of immovable property are of no avail as merely on admissions title in

immovable property does not stand conferred. Reliance in this regard can also

be placed on Ammini Tharakan Vs. Lillyjacob MANU/KE/1038/2013 (DB),

Kripa Shanker Pandey Vs. Baij Nath Pandey MANU/UP/4048/2010, Chandi

Prasad Vs. D.D.C., Kanpur MANU/UP/2974/2011, Pritam Singh Vs. Bohti

MANU/PH/2480/2014, Sukhdevi Vs. Ram Piari MANU/PH/0005/2014,

Sukrit Sahani Vs. Fuchai Sahani MANU/BH/1033/2009 (DB) & Bachi Devi

Vs. Shakuntala Kuer MANU/BH/1109/2015.

22. There is thus no merit in the appeal.

Dismissed.

No costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 11, 2016 „gsr‟..