Delhi High Court
Amarjeet Singh @ Rinku vs Surjeet Singh & Ors on 24 February, 2016
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th February, 2016
+ RFA 673/2014
AMARJEET SINGH @ RINKU ..... Appellant
Through: Mr. Pushpender Shukla, Adv.
Versus
SURJEET SINGH & ORS ..... Respondents
Through: Mr. G.S. Suri, Adv. 1&3.
Mr. Sanjeev Sabharwal, Adv. for R-
4/NrDMC.
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 decree dated 31 st March, 2014 of the Court
of Sh. Devender Kumar Jangala, Additional District Judge (ADJ) West, Tis
Hazari Courts, Delhi of dismissal of civil suit (No.414/2014 filed by the
appellant for partition of property No.2264-A (Left Side), Mandir Wali Gali,
Shadi Khampur, Ranjeet Nagar, New Delhi and for declaration that the
documents of transfer / sale of the said property executed by the respondent /
defendant no.1 in favour of the respondent / defendant no.3 Sh. Onkar Singh
are null and void and for injunction restraining the respondent / defendant
no.4 from dealing with the said property) consequent to rejection under
Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) of the plaint
on the ground of the claim therein being barred by Section 11 and Order
XXIII Rue 1 of the CPC.
2. Notice of the appeal was issued and the Trial Court record
requisitioned. The counsels for the respondents no.1 to 3 and respondent
no.4 North Delhi Municipal Corporation (NrDMC) appear.
3. Admit.
4. Considering the fact that if the appeal was to be allowed the suit will
have to proceed, the appeal with the consent of the counsels is taken up for
hearing at this stage only.
5. The appellant instituted the suit from which this appeal arises
pleading:
(i) that the entire property No. 2264-A, Mandir Wali Gali, Shadi
Khampur, Ranjeet Nagar, New Delhi, admeasuring 142 sq. yds.
was purchased by his grandfather Sh. Harnam Singh in the year
1957;
(ii) that Sh. Harnam Singh died intestate on 23rd May, 1976 leaving
the father of the appellant / plaintiff i.e. the respondent /
defendant no.1 and two other sons as his only legal heirs;
(iii) that one of the other sons of Sh. Harnam Singh relinquished his
share in favour of the father of the appellant / plaintiff and the
other brother, making them equal owners of the property;
(iv) that the father of the appellant / plaintiff i.e. the respondent /
defendant no.1 herein and his said brother divided the property
between themselves and thus the respondent / defendant no.1
became the owner of left side ad-measuring 71 sq. yds. of the
property;
(v) that the said left side property having been inherited by the
father of the appellant / plaintiff from his own father is ancestral
property and the appellant / plaintiff was also residing therein;
(vi) however the respondent / defendant no.1 and the respondent /
defendant no.2 Smt. Charanjeet Kaur being the mother of the
appellant / plaintiff by deceit made the appellant / plaintiff
leave the said property on the pretext of carrying out repairs
therein;
(vii) that the appellant / plaintiff upon learning that his parents i.e.
the respondents / defendants no.1&2 were intending to sell the
property, filed a suit for partition and possession and in the
written statement whereto the respondents / defendants no.1&2
informed of having sold the property to the respondent /
defendant no.3 Mr. Onkar Singh;
(viii) that an oral compromise was arrived at between the appellant /
plaintiff on the one hand and the respondents / defendants
no.1&2 on the other hand and owing whereto the appellant /
plaintiff withdrew the suit;
(ix) that however since the respondents / defendants no.1&2 did not
abide by the compromise, the appellant / plaintiff filed the suit
from which this appeal arises.
6. The respondents / defendants no.1 to 3 applied under Order VII Rule
11 of the CPC for rejection of the plaint on the ground of the same being
barred by Section 11 of the CPC for the reason of the appellant / plaintiff
having withdrawn the suit earlier filed by him for the same relief. In
addition, it was stated that yet another suit filed by the appellant / plaintiff
for the same relief also stood withdrawn "expressly without liberty to file
fresh suit on the same cause of action".
7. The aforesaid plea of the respondents / defendants no.1 to 3 found
favour with the learned ADJ who has as aforesaid rejected the plaint.
8. The counsel for the appellant / plaintiff states that since in the two
previous suits there was no adjudication on merits, the learned ADJ has
erred in invoking Section 11 of the CPC. He further states that the appellant
/ plaintiff cannot be left remediless.
9. At this stage it is found that the appellant / plaintiff has not even paid
the requisite court fees in this appeal. In this regard, it may be noticed that
the appellant / plaintiff had originally filed CM (M) No.599/2014 under
Article 227 of the Constitution of India and upon the same being found to be
not maintainable, was converted into this appeal subject to the appellant /
plaintiff paying the Court fees; inspite of Court fees having not been paid,
the Registry did not raise any objection and the appeal was entertained for
the last two years.
10. The Registry of this Court is again found to be negligent in ensuring
the collection of the Court fees leading to huge revenue loss.
11. The counsel for the appellant /plaintiff on behalf of the appellant /
plaintiff undertakes to this Court to pay the Court fees within 15 days.
Accepting the said undertaking and binding the appellant / plaintiff thereto, I
proceed to consider the appeal.
12. In my view, leave aside the grounds mentioned by the learned ADJ
for rejecting the plaint in the suit from which this appeal arises, the plaint
otherwise also does not disclose any cause of action and has been rightly
rejected.
13. The suit from which this appeal arises is yet another instance of the
common misconception prevalent of ancestral property and inspite of
repeated dicta of this Court as also noticed recently in Jai Narain Mathur
Vs. Jai Prakash Mathur MANU/DE/0379/2016.
14. The entire claim of the appellant / plaintiff for a share in the property
is premised on the factum of his father i.e. the respondent / defendant no.1
having inherited the property from his own father, the appellant / plaintiff
has a share therein. The said premise is in contravention of the provisions of
the Hindu Succession Act, 1956. The grandfather of the appellant / plaintiff
who is not disputed to have been the sole and absolute owner of the property
and which was his self-acquired property is stated to have died only on 23 rd
May, 1976 i.e. long after the coming into force of the Hindu Succession Act.
The property in accordance with the said law would be inherited by the
father of the appellant / plaintiff in his personal individual capacity and the
appellant / plaintiff as grandson would have no share therein. There is no
plea, of the property belonging to any joint Hindu family or a coparcenery.
15. As far as the grounds given by the learned ADJ for rejection of the
plaint are concerned, from the Trial Court record, I find that the appellant /
plaintiff on or about 4th June, 2012 filed two suits in the Court of the Civil
Judge, Delhi. One for permanent injunction for restraining his father and
mother from selling, alienating or parting with the property or from
demolishing the same or carrying out any reconstruction thereof and the
other for the reliefs of partition and possession. The suit for permanent
injunction was dismissed as withdrawn on 5th February, 2013 without liberty
to file a fresh suit on the same cause of action. The other suit for partition
was also dismissed as withdrawn / settled on 6th October, 2013.
16. Though undoubtedly there has been no adjudication on merits as
contended by the counsel for the appellant / plaintiff but Order XXIII Rule 1
of the CPC bars the appellant / plaintiff from bringing a suit on the same
cause of action. Even if it be the plea of the appellant / plaintiff that the
respondents / defendants no.1&2 have not abided by the compromise /
settlement in terms whereof the appellant / plaintiff withdrew the earlier suit
for partition, the remedy of the appellant / plaintiff is to apply in the same
suit and not by filing a fresh suit.
17. Thus whichever way we look at, no error is found in the order of
rejection of plaint leading to dismissal of the suit. The appeal is as
misconceived as the suit and is dismissed with costs of Rs.10,000/- to the
Delhi High Court Bar Association Lawyers‟ Social Security and Welfare
Fund, New Delhi.
Decree sheet be drawn up.
18. If the appellant / plaintiff does not pay the Court fees as undertaken by
him, action in accordance with law for recovery of Court fees from him be
taken.
RAJIV SAHAI ENDLAW, J
FEBRUARY 24, 2016
„gsr‟
