Sonny Sarna & Anr vs Urmil Wadhawan & Ors
2017 Latest Caselaw 3132 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Judgment delivered on: 10.07.2017

+       IA No.16375/2013 in CS (OS)1642/2012

SONNY SARNA & ANR                                               ..... Plaintiffs

                                Versus
URMIL WADHAWAN & ORS                                            ..... Defendants

Advocates who appeared in this case:
For the Plaintiffs:  Mr. Rajesh Yadav and Mr. Dhananjay
                     Mehlawat.
For the Defendants:  Mr. Abhimanyu Bhandari, Mr. Manmohan
                     Gupta, Mr. Priyank Mohan and Mr. Ajay Pal
                     Singh.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU

                                         JUDGMENT

VIBHU BAKHRU, J

IA No. 16375/2013

1. This is an application filed by the plaintiffs under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereafter „the CPC‟).

2. The plaintiffs have filed the above captioned suit for recovery of vacant possession of property bearing no.211, Jor Bagh, New Delhi - 110003 (hereafter „the suit property‟) together with mesne profits for use and occupation of the first and second floor of the suit property (along with a garage on the ground floor) by defendant nos.1 and 2, Mrs Urmil Wadhawan and Mr Anuj Wadhawan. The relief sought is limited to defendant nos.1 and 2, the rest of the defendants being co-owners of the

suit property (along with the plaintiffs), are arrayed as pro forma defendants.

3. The suit property was given on perpetual lease to Late Nand Singh Rekhi who built a 2-1/2 storied building thereon out of his own resources. Nand Singh Rekhi expired intestate on 27.07.1965. The parties (except defendant nos.1 and 2) are the legal heirs of Late Nand Singh Rekhi.

4. In 1988, 4 relinquishment deeds were executed by 4 of the legal heirs of Late Nand Singh Rekhi, conveying their shares in the suit property in favour of plaintiff no.1.

5. The plaintiffs claim that around 1989, on account of close friendship between plaintiff no.2 and one Kailash Berry (since deceased), the latter was permitted to use the first floor of the suit property. Later on, Mr Kailash Berry was also allowed the use of the garage situated on the ground floor of the suit property and the servant quarters. Mr Kailash Berry was later joined by his sister, defendant no.1 and her son, defendant no.2. He was also permitted to keep his goods on the second floor of the suit property, which it is claimed was used by the plaintiffs as a store. Mr Berry passed away on 13.01.2006. The plaintiffs claimed that on his death, the permissive 'user' / licence with regard to the suit property stood terminated.

6. Prior to that, the relinquishment deeds as mentioned earlier, were entrusted to Mr Berry to raise loan for plaintiff no.1. The deeds continued to be in his possession.

7. The plaintiffs state that on Mr Berry‟s death, defendant no.1 was requested to vacate the suit property and to handover the relinquishment deeds. Instead, defendant nos.1 and 2 filed a suit under Section 6 of the

Specific Relief Act, 1963 for recovery of actual possession of the Puja Room on the second floor of the suit property. Defendant no.1 also filed a suit (suit no.1209/2009) for permanent injunction to restrain any further mutations in favour of plaintiff no.1 - in respect of the leasehold rights in the suit property - particularly, to the extent of the undivided share of 20/48 in the suit property, in terms of the relinquishment deeds.

8. In the written statement filed by defendant nos.1 and 2, it is asserted that the consideration for the 4 relinquishment deeds executed in favour of plaintiff no.1, was advanced by Late Kailash Berry, on behalf of defendant no.l, for acquiring 5/12th share in the suit property. It has been stated that plaintiff no.1 has no rights in the suit property as his ownership rights to the extent of 21/48th share in the suit property has been acquired by defendant no.1 for consideration.

9. The defendants have strongly relied on an affidavit affirmed by plaintiff no.1 on 01.10.1993 whereby plaintiff no.1 had affirmed that four release deeds in respect of 20/48th (5/12th) share in the suit property were executed in favour of plaintiff no.1 for an aggregate consideration of `15,50,000/-. In the said affidavit, plaintiff no.1 further acknowledged that Mr Kailash Berry had advanced sum of `15,50,600/- to plaintiff no.1 for paying the consideration for the relinquishment deeds to the concerned parties, relinquishing their share in the suit property. The plaintiff no.1 has also affirmed that he had allowed Mr Kailash Berry to occupy the first floor and barsati floor of the suit property since 17.05.1988 in consideration of the receipt of the sum of `15,50,000/- and by an agreement dated 01.09.1989, agreed to sell/transfer his 20/48th share to Mr Kailash Berry in consideration for the sum of `15,50,000/- already

received. In the said affidavit, it has been unequivocally affirmed that Mr Kailash Berry occupies first floor and barsati floor, garage and servant quarters as a co-owner of the suit property, having 20/48th share in the same.

10. The defendant nos.1 and 2 claim that the said share (20/48th share) was acquired by Late Kailash Berry for his sister, defendant no.1.

11. The plaintiffs have filed the present application seeking a decree on admission on the grounds (a) that the suit property stands mutated in the records of L&DO in the name of the plaintiffs along with the other co- owners; (b) that it is admitted that 4 relinquishment deeds in respect of 20/48th share in the suit property were executed by other co-owners in favour of plaintiff no.1; (c) that plaintiff no.2 is admittedly the co-owner to the extent of 1/48th share in the suit property; (d) that the defence that Late Kailash Berry had paid the consideration on behalf of defendant no.1 is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988; (e) that the defendants have not been called to produce any sale deed or an agreement to sell for asserting part-ownership of the suit property; and (f) that the suit (suit No. 1209/2009) filed for permanent injunction against L&DO to prevent the substitution of leasehold rights in favour of plaintiff no.1, has also been dismissed by judgment dated 06.03.2013.

12. By order dated 21.11.2013, the present application was allowed and the suit was decreed in favour of the plaintiffs. Aggrieved by the same, an appeal (RFA(OS) 6/2014) was filed before the Division bench of this Court.

13. By order dated 06.01.2014, the Division bench set aside the order dated 21.11.2013. While remanding the matter to this Court, the Division bench made the following observations:-

"7. It is settled law that decree on an admission must be on a clear admission contained either in the pleadings or document signed by the party against whom the admission is held.

8. A reading of the written statement would reveal that payment of money by Sh. Kailash Berry when plaintiff No. 1 paid the consideration when the four relinquishment deeds were executed has been pleaded with further pleading that plaintiff No.l agreed to sell the 20/48% share which he was receiving under the relinquishment deeds. In other words title of the plaintiffs to 20/48 share in the property was disputed. The inartistic part in the pleading is not to take forward the defence in law by predicating a stand under Section 53A of the Transfer of Property Act by referring to the affidavit deposed to by plaintiff No.l and to which affidavit a reference has been made in the written statement filed. The plea of benami taken may have rightly been negated by the learned Single Judge as an invalid defence but in said circumstance, the consequence of defendant No.l being sister of Kailash Berry and thus her entitlement to protect the possessory right needed to the considered more so keeping in view the fact that the plaintiffs admitted that the four relinquishment deeds are in possession of defendant No.l, which fact assumes importance in light of common practice of title documents being handed over to those who purchase a property.

9. In any case, we do not find any admission warranting a decree on admission.

10. Learned counsel for the decree holders seeks to refer to certain pleadings, depositions and a decision by a Rent Controller which admittedly were filed before the learned Single Judge by the plaintiffs and were admitted documents.

11. The effect of the same has admitted (sic) not been considered by the learned Single Judge and this explains why we are reviving IA No. 16375/2013."

14. Although, Mr Rajesh Yadav had contended that the present application is required to be reheard afresh without being influenced by any observations made by the Division bench as the Division bench had expressly stated so in paragraph 3 of the decision dated 06.01.2014; however, this Court is not inclined to accept the aforesaid contention since the Division bench had expressly carved an exception in respect of observations which prima facie deal with the meaning ascribed to the pleadings of the defendants. There is no ambiguity in the finding of the Division bench that there was no admission warranting a decree on admission. Thus, in so far as the applicants‟ (plaintiffs‟) contention being that the pleadings and documents filed by the defendants contain admissions on the basis of which the suit is to be decreed, cannot be accepted. It is no longer open for the applicants to reagitate the same in view of the express findings returned by the Division bench in paragraph 9 of the decision dated 06.01.2014.

15. The only contention to be examined is whether the pleadings, depositions and decision of the learned Additional Rent Controller (ARC), which are referred to by the applicants, contain admissions, warranting the suit to be decreed in favour of the plaintiffs.

16. The applicants state that an eviction petition (E 381/1990) was filed by one Dr Dev Raj Talwar against Mr Kailash Berry in respect of first floor of premises bearing no. 8/27 East Patel Nagar, New Delhi, which was leased to Mr Kailash Berry. The said petition was, inter alia, comprised on the ground that Mr Kailash Berry had acquired an alternate residential

accommodation and is residing in the said premises, namely, 211, Jor Bagh, New Delhi. The said petition was contested by Mr Kailash Berry; he had stated in his deposition that the said property (suit property in the present suit) belonged to his friend and that his sister (defendant no.1) was staying in the same premises along with her son (defendant no.2).

17. The applicants have relied upon the transcripts of the examination and cross-examination of Mr Kailash Berry, examination of defendant no.1 and cross-examination of defendant no.2 in the said proceeding. In addition, the applicants have also relied on the decision of the ARC, dated 05.08.1999, rendered in that matter. The relevant extracts of the depositions relied upon by the applicants are set out below:-

"Examination and cross-examination of Kailash Berry (RW1) dated 23.11.1995:

....211 Jor Bagh belongs to my friend. Since my sister is staying at 211 Jor Bagh I oftenly go and visit her and sometime stay for a night ...

....Mrs Urmil Wadhawan is earlier staying in suit premises and now shifted to 211 Jor Bagh....

.....Wherever I have resided I have shown my address as 211 Jor Bagh New Delhi. I pay income tax, Vol. I am using the portion of 211 Jor Bagh House as my office. I am furnishing income tax also from the Jor Bagh house. The substantial amount by me from the Jor Bagh address. I am using Jor Bagh address for the last 2/3 years only...

... I have not brought documents of property No. 211 Jor Bagh.....

The property at Jor Bagh is residential as well as commercial. It is 2 and half storey building at Jor Bagh...

..... My friends are residing in property No. 211 Jor Bagh. Vol. In one portion my sister is residing. It is wrong to suggest that the ground floor of property at Jor Bagh is with me and 1st floor has been let out to tenant..." "Examination of D1 Urmila Wadhwan (RW2) dated 27.03.1997:

I am residing as sister-in-law at 211 Jor Bagh, Delhi. Respondent is my brother. The respondent has only an office on the barsati and he resides at Patel Nagar. I do not in whose name the telephone connection at 211 Jor Bagh, Delhi."

"Cross-examination of D2 Anuj Wadhwan (RW4) dated 25.05.1999:

"We came to live in the house No. 211 Jorbagh in July 1989. Myself and my mother was living since then. Before this I was living in 8/27 East Patel Nagar......

..... 211 Jorbagh belong to my friend. His name Sunny Sarna.

.......It is wrong to suggest that in house No. 211 Jorbagh the respdt is residing. The respdt has a office in 211, Jorbagh Barsati Floor. One room and attached toilet is occupation....

.......I do not know if Kailash Berry is tenant in the said portion. The said property 211 Jorbagh is residential..."

18. The relevant extract of the decision dated 05.08.1999 passed by the learned ARC, is set out below:-

"17. Regarding property bearing No. 211 Zor Bagh, Delhi the petitioner has no doubt denied the suggestion that the said property is not in the name of the respondent but has not produced any cogent evidence to show that the respondent has acquired the said premises for his residential use. The respdt. Has stated in chief-examination that the said property belongs to his friend and that his sister is staying alongwith his son in the said premises. In cross examination he admitted that wherever he resided he has shown his address as 211 Zor Bagh, New Delhi and further he has been using the portion of

the said house as his office. He further stated in cross examination that the said property is residential as well as commercial. He admitted that he had a telephone bearing No. 4601746 in his name in the said property. Despite all their evidence, the petitioner has failed to prove that the respondent has been residing and has acquired the said property for residential use after the creation of the tenancy...."

19. It is apparent from the above that the deposition of Late Kailash Berry does not contain any unequivocal or clear statement to the effect that the part of the suit property occupied by his sister (defendant no.1) is not in her own right as a person entitled to ownership thereof. Undoubtedly, he had stated that the suit property belongs to his friend. However, he has also stated that his sister is staying at the suit property and there is no explanation as to in which capacity she is staying there. This deposition cannot be held as an admission against defendant nos.1 and 2 in this case mainly for two reasons. First of all, the statements made by Late Kailash Berry cannot be considered as an admission against the said defendants and secondly, even if such statements were attributed to the defendants, the same are not unequivocal, clear and unambiguous so as to warrant a decree on admissions. Defendant nos.1 and 2 must have an opportunity to explain their statements in their depositions and cross-examinations.

20. The statement made by defendant no.1 also does not contain any clear admission to the effect that she is not entitled to reside in the suit property. It is well settled that admission on the basis of which a decree can be rendered has to be clear, unambiguous and conclusively established. This Court is not persuaded to accept that such is the case in this matter.

21. The statement of defendant no.2 being that the suit property belongs to Sonny Sarna is relatively clearer. However, this statement also cannot be

held as an admission against defendant no.1. Both the defendants must, therefore, have the opportunity to explain the same in their examination/ cross-examination in these proceedings. The decision of the learned ARC dated 05.08.1999 also does not further the case of the applicants. Firstly, the said decision does not bind defendant nos.1 and 2 as they were not a party to those proceedings and secondly, the decision also does not contain any finding that the part of the suit property claimed by defendant no.1 does not belong to her. In view of the above, the present application is dismissed. Parties are left to bear their own costs.

CS(OS)1642/2012

22. List on 09.08.2017.

VIBHU BAKHRU, J JULY 10, 2017 pkv