Delhi High Court
Lt. Col. Raj Kumar & Anr vs Ram Kumar Aggarwal & Ors on 6 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 6th August, 2018
+ RSA 79/2018, CM No.20678/2018(for stay)
LT. COL. RAJ KUMAR & ANR ..... Appellants
Through: Mr. Saurabh Jain, Adv.
Versus
RAM KUMAR AGGARWAL & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Second Appeal under Section 100 of the CPC impugns the
judgment and decree dated 6th January, 2018 [in RCA No.30/2016 (New
No.61345/2016) of the Court of Additional District Judge-12, Central] of
dismissal of First Appeal under Section 96 of the CPC preferred by the
appellants against the judgment and decree [dated 18th July, 2012 in Suit
No.1821/2008 (Unique Case ID No.0241C0581832007) of the Court of
Additional Civil Judge (North)] of dismissal of the suit filed by the
appellants/plaintiffs against the respondents/defendants.
2. The appellants/plaintiffs, by the said suit, sought a declaration that the
appellant/plaintiff no.2 Alok Kumar, who is the son of appellant/plaintiff
no.1 Raj Kumar, was the owner of flat no.10A, Supriya Apartment, Pocket
A-4, Paschim Vihar, New Delhi and a mandatory injunction directing the
respondents/defendants to execute the requisite documents for transfer of
the flat in favour of the appellant/plaintiff no.2. Further, reliefs were sought,
of permanent injunction restraining the respondents/defendants from
dispossessing the appellants/plaintiffs from the flat and from creating any
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third party interest in the flat aforesaid.
3. The case of the appellants/plaintiffs in the plaint was, :-
i) That the father of the appellant/plaintiff no.1 and the
respondents/defendants no.1 to 4 was the owner of the said flat.
ii) That as per the desire of the said father, the
appellant/plaintiff no.1 and the respondents/defendants no.1 to 4
agreed that the flat, after the demise of the said father, be owned by
the appellant/plaintiff no.2, being the grandson.
iii) That the respondents/defendants no.1 to 4 also executed No
Objection Certificates in that regard.
iv) However the respondents/defendants no.1 to 4 subsequently
failed to execute the documents of transfer.
4. I have enquired from the counsel for the appellants/plaintiffs as to how
the Suit Court, on the basis of pleas aforesaid, even if proved, could have
declared the appellant/plaintiff no.2 to be the owner. Admittedly, the paternal
grandfather of the appellant/plaintiff no.2 was the owner of the flat. It was/is
not the case that the paternal grandfather of the appellant/plaintiff no.2 left
any Will bequeathing the said flat to appellant/plaintiff no.2. In the absence
of any Will, on demise of paternal grandfather of the appellant/plaintiff no.2,
the flat devolved on the appellant/plaintiff no.1, and respondents/defendants
no.1 to 4, being his natural heirs. The only claim in the plaint was of a No
Objection Certificate having been executed by the respondents/defendants
no.1 to 4 for transfer of flat in name of appellant/plaintiff no.2. It has been
enquired from the counsel for the appellants/plaintiffs as to how a No
Objection Certificate constitutes a document of title.
5. The counsel for the appellants/plaintiffs, at this stage, states that he has
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just now been instructed by the appellants/plaintiffs present in the Court that
the paternal grandfather of the appellant/plaintiff no.2 had nominated the
appellant/plaintiff no.2 with respect to the said flat, in the records of the
Ravindra Cooperative Society, which had allotted the said flat to the paternal
grandfather of the appellant/plaintiff no.2. It is further stated that in terms of
such nomination, a family settlement was also arrived at.
6. A perusal of the plaint in the suit, from which this appeal arises,
however shows the plea of the appellants/plaintiffs to have been :-
i) That after the demise of the father, the appellant/plaintiff
no.1 and the respondents/defendants no. 1 to 4, being his heirs,
acquired title in the said flat and mutually agreed that the flat should
be transferred in the name of appellant/plaintiff no.2.
ii) It was further agreed that the respondents/defendants no.3
and 4, being the married daughters, shall not claim any right, title or
interest in the property.
iii) It was yet further agreed that the flat would be valued and
the appellant/plaintiff no.1, being the father of the appellant/plaintiff
no.2, will pay 1/3rd of the value of the flat to the
respondents/defendants no.1 and 2.
iv) That the value of the flat was assessed at Rs.15,00,000/- and
the appellant/plaintiff no.1 paid Rs.5,00,000/- each to the
respondent/defendant no.1 and respondent/defendant no.2 towards
their share and on receipt of which, the No Objection Certificates
were executed.
7. The plea of nomination and a family settlement, as is now being
sought to be urged, has no foundation or basis in the plaint and what is
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pleaded is relinquishment by respondent/defendants no.3&4 of the share
inherited by them in the flat, in favour of appellant/plaintiff no.1 and
respondents/defendants no.1&2 equally, making them 1/3 rd owner each of
the flat and, a commercial transaction, whereunder the
respondents/defendants no.1&2 had agreed to transfer their 1/3rd share each
in favour of the appellant/plaintiff no.2 for consideration.
8. There is no averment in the plaint, of relinquishment by the
respondents/defendants no.3&4 of their 1/5th share each in favour of
appellant/plaintiff no.1 and respondents/defendants no.1&2 equally, in
accordance with law i.e. by a registered document. In the absence of the
same, the appellant/plaintiff no.2 could not be declared owner. Similarly,
agreement pleaded, of respondents/defendants no.1&2 having agreed to
transfer their 1/3rd share each in favour of appellant/plaintiff no.2 for
consideration, also does not constitute the appellant/plaintiff no.2 owner. The
remedy of the appellant/plaintiff no.2 for failure of respondents/defendants
no.1&2 to abide by their agreement, was to sue for specific performance and
not for declaration of ownership.
9. The suit was thus misconceived in law and ought not to have occupied
the time of the court for eleven years and should have been dismissed at the
threshold.
10. The counsel for the appellants/plaintiffs states that the
appellants/plaintiffs be granted liberty to take appropriate remedies.
11. However, on enquiry as to under which law is such liberty required,
no answer is forthcoming.
12. This Court cannot, to the prejudice of the respondents/defendants,
grant any permission. All that can be observed is, that if the
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appellants/plaintiffs, under law are entitled to take any remedies, they would
be so entitled and in defence to which the respondents/defendants shall have
all defences available to them in law.
Dismissed.
RAJIV SAHAI ENDLAW, J.
AUGUST 06, 2018
Ak..
