Vidya Sagar vs Subhash Gupta
2018 Latest Caselaw 7130 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No. 957/2018

%                                                   4th December, 2018

VIDYA SAGAR                                               ..... Appellant
                          Through:       Mr. Nazia Hasan and Md.
                                         Monish, Advocates (Mobile
                                         No. 9717155440).
                          versus

SUBHASH GUPTA                                            ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 28.07.2018 by which

the trial court has dismissed the suit for possession and injunction filed

by the appellant/plaintiff with respect to property no. 534, A Block,

Raja Vihar, Samaypur Badli, New Delhi-110042. Though it is not on

record, the suit plot obviously is a very very small piece of plot

possibly between 25 to 50 sq. yards. The Counsel for the

appellant/plaintiff though ought to have answered this query, but he

had no answer to the same, although, as noted below, the

appellant/plaintiff claims to be the owner of the suit property in terms

of Documentation dated 18.05.1994. Even the photocopies of the

Documents dated 18.05.1994 have not been filed.

2. The facts of the case are that the subject suit was filed by

the appellant/plaintiff pleading that one Sh. Chandi Ram Rangi was

the owner of the suit property which was sold by Sh. Chandi Ram

Rangi to the appellant/plaintiff in terms of the Documentation dated

18.05.1994 being the Agreement to Sell, Power of Attorney, Will etc.

The possession of the suit property was also said to be handed over to

the appellant/plaintiff. The appellant/plaintiff pleads that he

constructed the ground floor in 1998 and thereafter permitted his

father and the respondent/defendant/brother to reside in the suit

property. It was also pleaded that the original title documents were

handed over by the appellant/plaintiff to his father and the

respondent/defendant. Since the respondent/defendant failed to vacate

the suit property, the subject suit for possession and injunction was

filed.

3. The respondent/defendant contested the suit and denied

that the suit property was owned by the appellant/plaintiff inasmuch as

the suit property was in fact purchased by the father of the parties

from his personal funds. It was pleaded that the father of the parties

also owned one 'Jhuggi'/ Hutment and a 'Lathe Machine'. The

respondent/defendant pleaded that between the parties there was a

Family Settlement on 07.11.1998/Ex.PW-1/D-1, in the presence of

various persons, and which family settlement is also signed by the

parties to the present litigation, whereby the suit property fell to the

share of the respondent/defendant and the appellant/plaintiff received

the 'Jhuggi'/Hutment along with the 'Lathe Machine' belonging to the

father.

4. The following issues were framed in the suit:-

"1. Whether plaintiff is entitled for relief of Possession, Permanent and Mandatory Injunction, as prayed for in the plaint? OPP.

2. Whether plaintiff has no right, title or interest in suit property so as to claim the relief, as prayed for in the plaint, against the defendant? OPD"

5. Parties led evidence, and these aspects are recorded in

paras 5 and 6 of the impugned judgment and these paras read as

under:-

"A) PLAINTIFF'S EVIDENCE

5) The plaintiff examined himself as PW1 vide affidvait P1 wherein his plaint was reiterated. His title documents PW1/A of the suit property, death certificate PW1/D of Subey Singh and NCR No. 935/11 PW1/E dated 11.07.11 were de-exhibited vide order dated 13.03.2018 on dismissal of his application u/s 65, Evidence Act.

After his cross examination, the PE was closed on 12.04.2018.

B) DEFENDANT'S EVIDENCE

6) The defendant produced three witnesses. He examined himself as DW1 vide affidavit D1 wherein his WS was reiterated.

DW2 Ram Badhai Singh & DW3 Shiv Bachan Singh were the attesting witnesses to the family settlement PW1/D1 who in their respective affidavits DW2/A & DW3/A deposed that his family settlement was reduced into writing by DW3 Shiv Bachan SIngh ; that it was executed in their presence ; that it was duly attested by both of them ; that it was also signed by Ram Avadh Gupta, Sri Ram Gupta, the parties & the father of the parties and that it was prepared both in original (retained by the plaintiff) & carbon copy (retained by the defendant).

After the cross examination of all the three witnesses, the DE was closed on 02.06.2018."

6. The trial court in my opinion has rightly dismissed the

suit inasmuch as the Family Settlement/Ex.PW1/D1 is a hand written

document, whereby the suit property has fallen to the share of the

respondent/defendant. This document is witnessed by as many as

eight persons from the locality and this document bears the signatures

of both the appellant/plaintiff and the respondent/defendant. Once

therefore the family settlement is entered into, and obviously which

would have a basis because although the title documents of the suit

property were in the name of the appellant/plaintiff, funds would have

been provided by the father, and thus the appellant/plaintiff received

his share of the property belonging to the father being one

'Jhuggi'/Hutment and a 'Lathe Machine', and the respondent/defendant

received the suit property and accordingly the suit has been rightly

dismissed by the trial court.

7. The Ld. counsel for the appellant/plaintiff firstly argued

that trial court has committed an error in declining the

appellant/plaintiff to produce the original Title Documents dated

18.05.1994 by dismissing the application filed by the

appellant/plaintiff vide order dated 13.03.2018, and this application

was for leading secondary evidence. However in my opinion, even if

the original title documents of the suit property were filed, and which

as per the appellant/plaintiff were in his name being dated 18.05.1994,

yet in view of the subsequent Family Settlement dated

01.11.1998/Ex.PW1/D1, the rights of the parties in the suit property as

also other properties of the father were settled whereby the

respondent/defendant got the suit property and the appellant/plaintiff

got one 'Jhuggi'/Hutment with a 'Lathe Machine' by which work was

being carried on by the father. It is the subsequent family settlement

which crystallizes the rights of the parties which will prevail and the

trial court has therefore rightly held that the appellant/plaintiff was not

the owner of the suit property by relying upon the Family Settlement

Deed dated 07.11.1998.

8. The Ld. counsel for the appellant/plaintiff then argued

that the Family Settlement Ex.PW1/D1 is not registered, and therefore,

cannot be looked into, however the law is well settled that Courts will

uphold family settlements because they bring a quietus to the disputes

in the family, and there is no requirement of registering and stamping

of a family settlement. A similar family settlement was also a subject

matter of the judgment of the Hon'ble Supreme Court in the case of

Roshan Singh and Ors. v. Zile Singh and Ors., AIR 1988 SC 881 and

the Hon'ble Supreme Court has held that such a family settlement does

not of its own create right, title and interest and therefore need not be

stamped and registered.

9. In view of the aforesaid discussion, I do not find any

merit in the appeal. Dismissed.

DECEMBER 04, 2018                           VALMIKI J. MEHTA, J
AK