Shyam Lal vs Sunder Lal & Anr.
2018 Latest Caselaw 1526 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of Decision: 7th March, 2018
+                                 RFA 235/2012
       SHYAM LAL                                          ..... Appellant
                         Through:      Mr. Shekhar Gupta, Advocate.
                                       (M:9868790800) with Ms. Bimla,
                                       wife of Appellant in person.
                         versus

       SUNDER LAL & ANR.                               ..... Respondents
                    Through:           Mr. Ashok Mahipal, Advocate for R-
                                       1    with   R-1        in   person.
                                       (M:9810176643)
       CORAM:
       JUSTICE PRATHIBA M. SINGH

PRATHIBA M. SINGH, J. (Oral)

RFA 235/2012 & CM No. ____/2018 (to be numbered by Registry) (by Appellant u/O 6 Rule 17 CPC)

1. This appeal has been filed impugning order dated 7th April, 2012 by which a decree for partition was passed in respect of the suit property bearing no.52/68, Gali No.20, Nai Basti, Anand Parbat, New Delhi (hereinafter, 'suit property'). Appellant and the two Respondents are brothers. The suit property was bequeathed to the three sons of Late Shri Panchu Ram vide registered Will dated 8th October, 1985. By the said registered Will, Late Shri Panchu Ram had debarred the four sisters from any share in the suit property and bequeathed the suit property in favour of his three sons.

2. The suit property is stated to have been tenanted to several tenants

over the years and proceedings were initiated by the brothers against such tenants. In one of the proceedings, the Appellant's wife Smt Bimla, who was the attorney holder therein, had filed pleadings and affidavits confirming the existence of Will dated 8th October, 1985 and mutation of the suit property as per the said Will on 17th May, 1991. Smt. Bimla, who is the Power of Attorney of the Appellant herein, had filed evidence by way of affidavit in Madan Lal v. Sarbwati to the following effect:

"1. That the Deponent is the Special Attorney of Shri Madan Lal and is competent to swear this affidavit and she is well conversant with the facts of the case. The Special Power of Attorney is Ex.PW-1/1.

2. That Shri Panchu Ram was the Owner of the property and Petitioner Madan Lal is his real son. Shri Panchu Ram have 3 sons namely Shri Shyam Lal, Shri Madan Lal/Petitioner and Shri Sunder Lal.

3. That Shri Panchu Ram was owner of the property bearing no.52/68, Gali No.20, Nai Basti, Anand Parvat, New Delhi and he died on 14.2.1988 leaving behind a Will dated 8.10.85.

4. That Shri Panchu Ram has executed the said Will dated 8.10.85 and the same is Ex.PW-1/2. The Will executed by Shri Panchu Ram was registered accordingly with the Sub-Registrar and the same was duly witnessed by Shri Rattan Lal as well as Shri Kishan Lal. Shri Panchu Ram has bequeathed his property No.52/68, Gali No.20, Nai Basti, Anand Parvat, New Delhi among his sons namely Shri Shyam Lal, Shri Madan Lal/Petitioner and Shri Sunder Lal. Not only this Shri Panchu Ram alongwith the Will has got prepared a Site plan showing therein the respective shares bequeathed to respective sons.

5. That all the family members have honoured the

said Will and accordingly the Property have been got mutated in the name of above said three persons in the M.C.D. Record. Mutation letter is Ex.PW-1/3..... "

3. In her cross-examination in the said matter, she deposed as under:

".....It is correct that the suit property has been mutated jointly in the name of Madan Lal, Shyam Lal and Sunder. It is correct that the suit property is jointly owned by Madan Lal, Shyam Lal and Sunder. It is correct that the suit property is joint property as the same has been yet not partitioned....."

4. In another proceedings titled as Lachho Devi v. Bhola Shankar & Ors., where the three brothers were the Defendants, it was pleaded in the Written Statement as under:

"That the father of the Defendant No.2 was the owner of property built on 100 sq.yds. bearing No. 52/68, Gali No.20, Anand Parbat, New Delhi, which he never sold to anybody and by a registered Will dated 8.10.85 bequeathed the same to his three sons including the Defendant No.2. On his death on 14.2.88, the Defendant No.2 became owner of the property and started dealing with the same including Ratan Lal, Ram Pal and Bhola Shankar (Defendant No.l). House tax of the property continues to be in the name of the three brothers, namely, Madan Lal, Sunder Lal and Shyam Lal. The Plaintiffs, in fact, a tenant under the brother of the Defendant No.2 Sh. Sunder Lal."

5. In the affidavit supporting the written statement and injunction application attached with the suit above, Shri. Shyam Lal, the Appellant

herein stated as under:

"2. That the property No. 52/68, Gali No.20, Nai Basti, Anand Parbat, Delhi, continues to be the property of the deponent and his brothers Madan Lal and Sunder Lal, after the death of our father Sh.Panchoo Ram, who died on 14.2.88 and as per his last Will (registered) dated 8.10.85 and no part of it was ever sold at any point of time by our father to the Plaintiff. The property has been partitioned between the brothers as per the Will and the Defendant No.1 who was tenant in the disputed room, surrendered his tenancy rights and delivered possession to the Defendant No.2/deponent on 14. 1. 1993."

6. A perusal of these pleadings and evidence and other documents makes it clear that it has been the consistent case of the Appellant and the Respondents that the suit property belongs to the three brothers as per Will dated 8th October, 1985 which is a registered Will and even mutation of the suit property has been carried out on the basis of the Will.

7. Despite this being the position, when the Respondents sought partition of the property, the same was refused by the Appellant which led to the filing of the subject suit for partition. The Appellant took a complete u-turn in the written statement and pleaded that the Respondents are not entitled to the suit property and that they had been ousted from the suit property. It was also claimed that the Will was a forged and fabricated one. Relevant extracts of the written statement is set out herein below:

"2. That the suit is false, frivolous and vexatious and has been filed with malafide intention to harass the defendant who is the exclusive owner of the suit property. It is submitted that both the Plaintiffs had been ousted from the suit property.

All the right, title and interest in the suit property had been derived by the defendant under law of adverse possession. The Plaintiff No.1 had been residing in two rooms with the permission of the defendant, otherwise, he has no right, title or interest. He had been residing in the rented premises in the Bandook Wali Gali, Ajmeri Gate, Delhi. The roof of the said premises became in dilapidated condition. He has been allowed to reside in the two rooms till the roof of the said premises is repaired. The Plaintiff No.2, had never been allowed to reside in the suit property for the last more than 15 years and has thus lost right, title or interest if any. In Plaint, the Plaintiffs have admitted that they never realised rent nor knows the names of the tenants. Admittedly, litigation with tenants was financed and prosecuted by the defendant and his wife. ..........................

5. That the alleged will dated 8.10.1985 relied upon by the Plaintiffs is forged and fabricated document. It was forged by the Plaintiffs to become entitled to share in the suit property and to deprive their sisters The defendants reserves his right to initiate prosecution of the Plaintiffs."

8. A perusal of the averments in the written statement makes it clear that the same are completely contradictory to the pleas taken earlier in various proceedings, while opposing the tenants who were in occupation of various portions of the premises. It is quite clear that the Appellant made false claims before the Trial Court.

9. In view of the above documents and the pleas taken therein, the Respondents sought a decree under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter, 'CPC'). In view of the various admissions

made in the earlier pleadings and evidence, the Trial Court decreed the suit.

10. Against the impugned judgment, the present appeal has been filed in which stay has been granted vide order dated 25 th May, 2012. The appeal has thereafter remained pending. On 11th January, 2018, this Court had partly heard the matter and in view of the stand taken by the parties, a Local Commissioner was appointed to visit the premises and submit a report. The Local Commissioner has since submitted a report and the matter was listed for hearing today.

11. Mr. Shekhar Gupta, Advocate appearing for the Appellant submits that he has moved an application under Order VI Rule 17 of the CPC which has not been listed. However, at the request of the parties, the said application has been called for from the Registry. A perusal of the said application reveals that after a period of 11 years since the suit was filed, the Appellant seeks to create a completely new story about a family settlement and as to how the Respondents have been ousted from the suit property.

12. A perusal of this application further reveals that there is a complete contrast and contradiction between the pleas taken in the application which are proposed to be added in the written statement and the documents and pleadings and evidence extracted herein above. The application under Order VI Rule 17 of the CPC is accompanied by the affidavit of Mr. Shyam Lal S/o Late Shri Panchu Ram, Appellant herein. On a query from the Court, learned counsel for Appellant submits that Mr. Shyam Lal is a Central Government employee. It is quite clear to the Court that there is an attempt being made to make false statements in this appeal. The pleas in the present application and in the written statement are totally inconsistent with the pleas earlier taken. In fact the pleas of the Appellant, if pressed, could

constitute false claims being made in a Court of law under Section 209 of Indian Penal Code, 1860.

13. At this stage, learned counsel for Appellant seeks a pass over. Post lunch, when the matter was taken up, Appellant Mr. Shyam Lal, and his wife are present in Court. Respondent No.1 Mr. Sunder Lal is also present. The statements of Mr. Shyam Lal and Smt. Bimla have been recorded on oath. From the statements recorded, it is clear that the present litigation i.e. suit for partition which was filed in the year 2007 has been dragged on for 11 years on the basis of false allegations that the Will is forged and fabricated. It is extremely unfortunate that such a situation has arisen amongst brothers in a family. The Appellant is a government employee and is due to retire on 31st March, 2018.

14. The Appellant and his wife have tendered an unconditional apology for their conduct. They have also stated before the Court that they have no objection if the suit property is partitioned between the three brothers. In view of the above facts and the statements of the Appellant and his wife, the impugned judgment/decree is confirmed in respect of the shares of the Appellant and the Respondents Nos.1 & 2. However, in order to make it more practicable and for the three brothers to live peacefully, the parties agree that physical partition of the suit property may be carried out in the following manner:

(i) Appellant shall be entitled to 1/3rd portion of the suit property with entrance from Gali No.19.

(ii) Respondent Nos.1 & 2 would each be entitled to the vacant and peaceful possession of 1/3rd portion of the suit property with their entrance from Gali No.20. The Respondents shall work out the

modalities of providing their respective entrances.

(iii) For carrying out the physical demarcation Mr. Shishu Chauhan (M:9711159781), Civil Engineer is appointed as Local Commissioner to visit the suit premises and carry out the demarcation of the suit property. The Commissioner shall carry out the physical demarcation of the suit property on the basis of actual measurement of the plot where 1/3rd portion with entrance towards Gali No.19 shall fall in the share of Appellant and remaining 2/3rd portion of the suit property with entrance towards Gali No.20 shall fall in the share of Respondents. Parties shall cooperate in the demarcation.

(iv) The parties shall get their respective electricity and water meters installed/shifted in respect of their respective portions. Parties shall cooperate with each other in any documentation that needs to be filed with the concerned authorities for such installation/shifting.

(v) Once demarcation is carried out, parties would not interfere with the peaceful possession and enjoyment of the suit property of the other party.

(vi) Appellant and his wife are given one month's time, after demarcation, to enable them to settle down in their portion of the suit property as demarcated by the Commissioner.

(vii) The Appellant and his wife shall ensure that within one month vacant and peaceful possession shall be given to the Respondents of the 2/3rd portion, falling in their share.

15. The Local Commissioner shall visit the suit property on or before 15 th March, 2018 for carrying out the demarcation. The Appellant and his wife shall hand over vacant and peaceful possession of 2/3rd portion of the suit

property to the Respondents on or before 15th April, 2018. The fee of the Local Commissioner is fixed at Rs.20,000/- (Rupees Twenty Thousand Only) to be shared by both the parties. Parties shall append their signatures below in acceptance of the terms recorded above.

16. List on 18th April, 2018 for reporting compliance. The parties shall remain present in person on the next date of hearing. The impugned judgment/decree is modified in the above terms.

17. The application under O.VI Rule 17 of the CPC (unnumbered CM) is dismissed. Appeal and all pending applications are disposed of with no order as to the costs.

PRATHIBA M. SINGH Judge MARCH 07, 2018/dk