Madan Lal Khurana & Ors. vs Santosh Khurana & Ors.
2017 Latest Caselaw 7104 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 1008/2017

%                                     Reserved on: 5th December,2017
                                   Pronounced on: 8th December,2017


MADAN LAL KHURANA & ORS.               ..... Appellants
                Through: Ms. Richa Kapoor, Advocate.

                          versus

SANTOSH KHURANA & ORS.                                ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

CM No. 43682/2017 (Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

RFA No. 1008/2017 & CM Nos. 43679/2017 (stay), 43680/2017(U/o XXXIX R 2(A) & CM No. 43681/2017 (U/o XLI R 27 CPC)

1. This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (CPC) by the defendants in the suit

impugning the judgment of the trial court dated 3.8.2017 by which the

trial court has decreed the suit of the respondent no.1/plaintiff for

possession of the suit property bearing no. 172, first floor, Jagriti

Enclave, I.P. Extension, Delhi as also for mesne profits at Rs.10,000/-

per month along with the interest at 6% per annum.

2. The subject suit was filed by the respondent no.1/plaintiff

against the appellants/defendants. Appellant no.1/defendant no.1 is the

son of the respondent no.1/plaintiff. Respondent no.1/plaintiff is 72

years of age and her husband is 82 years of age. The property 172,

Jagriti Enclave, I.P. Extension, Delhi was purchased by the respondent

no.1/plaintiff by means of usual documents of agreement to sell,

power of attorney etc dated 29.12.1983 and such set of documents was

superseded by duly registered sale deed dated 5.3.1993 in favour of

the respondent no.1/plaintiff. On payment of conversion charges a

conveyance deed dated 12.2.1998 was executed and registered by the

DDA in favour of respondent no.1/plaintiff. Respondent no.1/plaintiff

therefore pleaded to be the owner of the suit property.

3. As per the case set up in the plaint, it was pleaded that the

appellant no.1/defendant no.1 being the son of the respondent

no.1/plaintiff was married in the year 1988 with the appellant

no.2/defendant no.2. Plaint thereafter talks of various disputes

between the respondent no.1/plaintiff and the appellant nos. 1 and

2/defendant nos. 1 and 2. In sum and substance the facts of the case

are that the appellant nos. 1 and 2/defendant nos. 1 and 2 with their

children, being the appellants no. 3 to 5/defendant nos. 3 to 5, were

permitted as gratuitous licencees to stay in the suit property.

Respondent no.1/plaintiff further pleaded that she and her husband as

also her younger son Sh. Sanjay Khurana has been harassed and

troubled by the appellant nos.1 and 2/defendant nos. 1 and 2 and

respondent no.1/plaintiff is pleaded to have executed a Will dated

22.6.2001 of the Jagriti Enclave property in favour of her younger son

Sh. Sanjay Khurana who was taking care of the respondent

no.1/plaintiff and her aged husband. The gratuitous licence of the

appellants/defendants was terminated by a notice dated 6.12.2005 and

thereafter the subject suit for possession and mesne profits was filed.

4. As per the written statement filed by the

appellants/defendants the plea which was raised was that the suit

property was purchased out of the joint funds. The suit property was

pleaded to be joint property of the appellant no.1/defendant no.1 and

his father Sh. Tilak Raj Khurana i.e husband of respondent

no.1/plaintiff. It was pleaded in the written statement that the

respondent no.1/plaintiff and her husband, i.e the parents of the

appellant no.1/defendant no.1 were playing into the hands of two other

brothers namely Sh. Surender Khurana and Sh. Sanjay Khurana. The

suit was therefore prayed to be dismissed.

5. After pleadings were complete, the trial court framed the

issues and only the respondent no.1/plaintiff led evidence.

Appellants/defendants led no evidence and after granting of repeated

opportunities evidence of the appellants/defendants was closed vide

order dated 8.2.2017. One more opportunity was granted subject to

payment of costs of Rs.20,000/- but the appellants/defendants did not

deposit the costs. Again an application was filed by the

appellants/defendants for recalling of the order dated 8.2.2017 and

which application was also dismissed vide order dated 28.7.2017. The

issues which have been framed and the aspects with respect to leading

of evidence are mentioned in paras 7 to 9 of the impugned judgment

and these paras read as under:-

"(7) Thereafter, replication filed on behalf of plaintiff and in replication plaintiff has reiterated the facts mentioned in her plaint. From the pleadings of the parties following issues were framed by Hon‟ble High Court on 24.10.2008:-

(a) Whether property no.172 Jagriti Enclave IP Extension New Delhi was acquired from the funds of the partnership firm M/s Khurana Traders and effect thereof? OPD

(b) Whether the defendants are not barred from taking the plea that the property no. 172 Jagriti Enclave IP Extension New Delhi is not owned by the plaintiff in view of the provisions of Benami Transaction (Prohibition) act, 1988? OPD

(c) Whether the plaintiff is entitled to decree of possession of the first floor of the property bearing no. 172, Jagriti Enclave IP Extension, new Delhi? OPP

(d) Whether the plaintiff is entitled to mesne profits and if so, at what rate and from which defendant? OPP

(e) Relief.

(8) In order to prove her case, the plaintiff has examined herself as PW-1. No other witness was examined on behalf of plaintiff. She relied upon the documents Ex.PW1/A to Ex.PW1/D. Vide separate statement of counsel for plaintiff dated 29.01.2015 plaintiff evidence was closed and matter was listed for DE, since the defendants failed to lead their evidence. Vide order dated 08.02.2017, right of defendants to lead DE was closed. Vide order dated 17.11.2015 chamber appeal was allowed and one opportunity was granted to defendants to lead evidence subject to cost of Rs.20,000/-, however, defendants have not shown their bonafide as they have not even deposited the costs. (9) Thereafter, on 16.03.2017, application under Section 151 CPC has been filed on behalf of defendant no.1 seeking recall of the order dated 08.02.2017 and allow the defendant no.1 to lead evidence in his defence which was dismissed vide order dated 28.07.2017 and matter was listed for arguments."

6. In my opinion, the trial court has rightly decreed the suit

because admittedly the respondent no.1/plaintiff was the owner of the

suit property. The appellants/defendants did not dispute that the title

documents of the suit property were in the name of the respondent

no.1/plaintiff because the case of the appellants/defendants was that

the suit property was purchased out of the joint funds of the appellant

no.1/defendant no.1 and his father Sh. Tilak Raj Khurana, the husband

of the respondent no.1/plaintiff. Onus of proof was therefore upon the

appellants/defendants to show that the suit property was purchased out

of the joint funds and that whether at all such a plea of the joint funds

was available in view of the bar contained in Section 4 of the

Prohibition of Benami Property Transactions Act, 1988 (in short „the

Benami Act‟).

7. It is already noted above that the appellants/defendants

have failed to lead evidence. Once the appellants/defendants failed to

lead any evidence obviously the onus of proof upon them was not

discharged that the suit property was not owned by the respondent

no.1/plaintiff but was owned by the appellant no.1/defendant no.1 and

his father Sh. Tilak Raj Khurana. Trial court has in this regard also

rightly held that the suit is barred by Section 4 of the Benami Act

because the plea of the appellants/defendants was a plea of the suit

property being benami in the name of the respondent no.1/plaintiff and

there is no pleading or evidence of the appellants/defendants as to the

appellants/defendants being covered by the exceptions contained in

Section 2(9)(A) of the Benami Act, or the erstwhile Section 4(3) of the

Benami Act of there existing any HUF or any fiduciary capacity or

other reason as found in the aforesaid exceptions contained in Section

2(9)(A) of the Benami Act.

8.(i) Learned counsel for the appellants/defendants argued that

the appellants/defendants had an interim order in their favour which

was violated by the respondent no.1/plaintiff inasmuch as during the

pendency of the suit there was a gift deed executed by the respondent

no.1/plaintiff in favour of her son Sh. Sanjay Khurana and that in these

contempt proceedings evidence was going on and therefore the

impugned judgment could not have been passed till contempt

proceedings were decided by the trial court.

(ii) In my opinion this argument urged on behalf of the

appellants/defendants carries no substance because this Court fails to

understand as to how any issue of violation of interim order will have

any bearing on the merits of the disputes in the suit as to the

respondent no.1/plaintiff being the owner of the suit property and the

appellants/defendants having failed to lead evidence and discharge the

onus of proof of the suit property having been purchased out of the

joint funds, and which plea also in any case was barred by the Benami

Act. This argument of the appellants/defendants is therefore rejected.

9. Counsel for the appellants/defendants then argued that the

impugned judgment and decree was a collusive decree inasmuch as

respondent no.1/plaintiff was being aided and abetted by her son Sh.

Sanjay Khurana, however once again this Court fails to understand

this argument because how can such an argument have bearing on the

merits of the matter which was as to the respondent no.1/plaintiff

being the owner of the suit property and therefore the

appellants/defendants who were gratuitous licencees could not stay in

the suit property on account of termination of such gratuitous licence

by the respondent no.1/plaintiff.

10. Counsel for the appellants/defendants then argued that the

suit property was in fact purchased out of the joint funds of the

partnership being carried between the appellant no.1/defendant no.1

and his father and therefore Section 14 of the Indian Partnership Act,

1932 applied however once again this argument is completely baseless

because as already stated above the appellants/defendants have failed

to lead evidence in support of their case and therefore a mere pleading

of joint funds without any evidence led to prove the same would not

mean that the suit of the respondent no.1/plaintiff/owner of the suit

property should have been dismissed. Also the plea of the suit

property having been purchased out of the joint funds and that the suit

property was benami in the name of the respondent no.1/plaintiff was

barred by the provision of Section 2(9)(A) read with Section 4 of the

Benami Act.

11. Learned counsel for the appellants/defendants then

argued that respondent no.1/plaintiff failed to prove that

appellants/defendants were licencees and once again this argument is

meaningless because the licencees includes gratuitous licencees i.e

once respondent no.1/plaintiff was the owner of the suit property and

appellants/defendants who were permitted to occupy the suit property

failed to show any right, title and interest in the suit property, then it

has been rightly held by the trial court that the appellants/defendants

were staying on account of the gratuitous licences created by the

respondent no.1/plaintiff i.e allowing her son and his family to stay in

the property as gratuitous licencees. This argument of the

appellants/defendants is therefore rejected.

12. Learned counsel for the appellants/defendants finally

argued that appellants/defendants have filed an application in this Court

under Order XLI Rule 27 CPC for leading additional evidence being

C.M. No.43681/2017, however, I fail to understand as to how the present

is a case of additional evidence because admittedly the

appellants/defendants failed to lead evidence in spite of repeated

opportunities and therefore right to lead evidence was rightly closed and

in fact an application to recall the order closing evidence was dismissed

and which proceedings have become final. Therefore, Order XLI Rule

27 CPC cannot be called in aid for the benefit of the

appellants/defendants because this provision applies when there is

some evidence already of a party in the trial court and then in such

case the additional evidence is sought to be led subject to satisfying

the ingredients of Order XLI Rule 27 CPC. In any case this

application under Order XLI Rule 27 CPC cannot be allowed because

it would amount to recalling the order closing the evidence of the

appellants/defendants and which has become final. C.M.

No.43681/2017 is accordingly meritless and is therefore dismissed.

13. There is no merit in the appeal. Dismissed.

 DECEMBER 08, 2017                               VALMIKI J. MEHTA, J
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