Delhi High Court
Bhateri Devi vs Tara Chand (Deceased) Through Lrs ... on 4 September, 2018
$~6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 322/2016
BHATERI DEVI ..... Appellant
Through: Mr. N.S. Dalal and Ms. Suman
Chaudhary, Advs.
Versus
TARA CHAND (DECEASED) THROUGH LRS
& ORS ..... Respondents
Through: Mr. B.S. Maan and Mr. Sumit Singh,
Advs. for R-1 to 8.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 04.09.2018
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 16 th
September, 2016 in RCA No.41/16/2003 of the Court of the Additional
District Judge-16(C), Tis Hazari Courts] of dismissal of First Appeal under
Section 96 of the CPC preferred by the appellant against the judgment and
decree [dated 26th April, 2003 in Suit No.338/2002 of the Court of the Civil
Judge, Delhi] of dismissal of the suit filed by the appellant/plaintiff against
the respondents/defendants for permanent injunction restraining the
respondents/defendants from interfering with the use and enjoyment of the
appellant/plaintiff of the portion shown in red colour in the site plan filed
with the plaint of house / property situated within lal dora abadi of village
Dichaon Kalan, New Delhi and for further restraining the
respondents/defendants from interfering with the appellant/plaintiff raising
permanent construction thereon.
2. The appeal was entertained and notice thereof issued, though without
indicating the substantial question of law if any which the appeal entailed.
The suit court record has also been requisitioned. The counsel for the
appellant / plaintiff and the counsel for the respondents / defendants have
been heard and the suit court record perused.
3. The appellant / plaintiff sought injunction, pleading that in a
settlement amongst the members of the family to which the appellant /
plaintiff and the nine respondents / defendants belonged, the land aforesaid
had fallen to the share of the husband of the appellant / plaintiff and as
whose legal heir the appellant / plaintiff was in possession thereof.
4. The respondents / defendants in their joint written statement, though
admitted the Family Settlement but denied that the subject land had fallen to
the share of the husband of the appellant / plaintiff. Rather, it was their plea
that the subject land, in the Family Settlement, had fallen to the share of
respondent / defendant no.1. A counterclaim was also made in the suit, for
declaration to the said effect.
5. The suit court, on 24th May, 2000, framed the following issues in the
suit:
"1. Whether the suit of the plaintiff is not maintainable in the present
form? OPD.
2. Whether the suit of the plaintiff is bad on account of non-joinder of
necessary parties? OPD.
3. Whether the plaintiff has got no locus-standi to file the present
suit? OPD.
4. Whether there exists any cause of action in favour of the plaintiff
and against the defendant for the purpose of the present suit? OPP.
5. Whether any family partition had taken place amongst the family
members of the plaintiff and the defendant? OPP
6. Whether the plaintiff is entitled to the relief of permanent
injunction, as claimed as per the prayer clause? OPP.
7. Relief."
and the following issues in the counterclaim:
"1. Whether there exists any cause of action in favour of the
defendants against the plaintiff for the purpose of the present suit?
OPD.
2. Whether there was any oral family partition between the parties?
OPD.
3. Whether the defendant is entitled for the relief of Declaration as
claimed as per the prayer clause? OPD.
4. Whether this court has got no jurisdiction to try the present counter
claim? OPP.
5. Whether the defendants are entitled for the relief of declaration as
claimed as per the prayer clause? OPD.
6. Relief."
6. The suit court decided issues no.1 to 5 in the suit, in favour of the
appellant / plaintiff. However, no finding on merits, on issue no.5 was
returned owing to the admission in the written statement of a Family
Settlement having taken place. As far as issue no.6 in the suit is concerned,
on the basis of the report of the commission issued, it was held that the
appellant / plaintiff and the respondent no.1 / defendant were in joint
possession of the subject land and the appellant / plaintiff had failed to prove
that in the Family Settlement the subject land had fallen to the share of her
husband.
7. On the counterclaim, it was held that the respondents / defendants had
failed to prove than in Family Settlement the subject land had fallen to
exclusive share of respondent / defendant no.1. It was further held that the
respondent / defendant no.1 having been found in joint possession with
appellant / plaintiff, otherwise also was not entitled to declaration.
Resultantly, the suit as well as the counterclaim were dismissed.
8. Neither the respondent / defendant no.1 nor the respondents /
defendants challenged the dismissal of the counterclaim as aforesaid and
which judgment has attained finality.
9. The appellant / plaintiff preferred first appeal which was dismissed
and thus this second appeal.
10. The counsel for the appellant / plaintiff, though has not disputed the
report of the commission issued, but has contended that merely because the
respondent / defendant no.1 was found to be tethering cattle on the subject
land did not amount to being in joint possession with the appellant/plaintiff.
11. There is some merit in the aforesaid contention inasmuch as the
principle qua open land is that possession is presumed to be of title holder
and mere use by another of open land, does not amount to possession.
Reference in this regard may be made to Anathula Sudhakar Vs. P. Buchi
Reddy (2008) 4 SCC 594, Savyasachi K. Sahai Vs. Union of India 2017
SCC OnLine Del 8818, Institute of Human Behaviour & Allied Sciences
Vs. Govt. of NCT of Delhi ILR (2012) 3 Del 247, Pankaj Bajaj Vs.
Meenakshi Sharma 2013 SCC Online Del 2303, S.S.P. Buildcon P. Ltd.
Vs. MCD 2010 (119) DRJ 57, Ishmali Devi Vs. Delhi Development
Authority 2009 SCC OnLine Del 2550, and, Navalram Laxmidas Devmurari
Vs. Vijayaben Jayvantbhai Chavda AIR 1998 Guj 17. However, the
appellant / plaintiff in the present case has also failed to establish title to the
subject land i.e. that the same, in the Family Settlement, had fallen to the
share of the husband of the appellant / plaintiff.
12. Though the counsel for the appellant / plaintiff has attempted to
contend that once the counterclaim stands dismissed and there is an
admission of Family Settlement, it has to be presumed that in such Family
Settlement the subject land fell to the share of the appellant / plaintiff but I
am unable to find any such legal proposition and the counsel for the
appellant / plaintiff also has been unable to substantiate the same.
13. I have however enquired from the counsel for the respondents /
defendants, whether not once the appellant / plaintiff and the respondents /
defendants both have been found to be in possession, both are required to
maintain status quo qua title and possession.
14. The counsel for the respondents / defendants states that he has no
objection to the same and such an order may be made in this second appeal.
15. The counsel for the appellant / plaintiff then contends that if the
appellant / plaintiff is not found to have proved that the subject land has
fallen to her share in the Family Settlement, then the appellant / plaintiff
would be entitled to maintain a suit for partition of the entire estate of the
father-in-law of the appellant / plaintiff and the father of the respondents /
defendants and in which the appellant / plaintiff through her husband, or in
her own right, will have a share.
16. The counsel for the respondents / defendants is agreeable to the same also.
17. The counsel for the appellant / plaintiff has been unable to satisfy me
on the basis of evidence on record, of the appellant / plaintiff having proved
that the subject land had fallen to the exclusive share of the appellant /
plaintiff in the Family Settlement aforesaid. In my opinion, there is no
proposition of law that if the defendant admits the Family Settlement
claimed by the plaintiff but controverts the plaintiff's version thereof and
fails to prove his own version thereof, the version of Family Settlement
pleaded by plaintiff and controverted by defendant, even if not proved by
plaintiff, has to be believed. Rather, it is the contention of the counsel for
the respondents / defendants, that it is the plea of the respondents /
defendants that in the Family Settlement, another property had fallen to the
share of the appellant / plaintiff / her husband.
18. Accordingly, with the consent of the parties through counsels, this
appeal is disposed of with the following order:
(i) that the appellant / plaintiff shall be entitled to institute a suit
for partition of the estate / properties of her father-in-law, who
was the father of the respondents / defendants, notwithstanding
the claim of the appellant / plaintiff of a Family Settlement and
further notwithstanding the admission of the respondents /
defendants thereof.
(ii) In the aforesaid suit, if filed, all pleas will remain open to the
parties, notwithstanding any finding returned in the suit or in
the first appeal preferred thereagainst from which this appeal
arises, save as to the finding of joint possession of the appellant
/ plaintiff and the respondent / defendant no.1 of the subject
land.
(iii) However, it shall not be open to the respondents / defendants or
respondent / defendant no.1 in the aforesaid suit, if any
instituted by the appellant / plaintiff, to again take the plea of
sale of another land by the father-in-law / father to the
respondent / defendant no.1 and the finding in which regard
will continue to bind the parties.
(iv) The appellant / plaintiff and the respondents / defendants shall
maintain status quo qua the subject land till 10th October, 2018;
if no such suit as aforesaid is filed by the appellant / plaintiff,
the said order of status quo qua title, possession and
construction shall automatically lapse; however if such a suit is
filed by the appellant / plaintiff and the appellant / plaintiff
along with the said suit files an application for interim relief,
the further continuation of the said order beyond 10 October,
2018 shall depend upon the orders if any passed in the
application for interim relief in the said suit.
(v) The impugned judgments of the suit court and the first appellate
court shall stand modified in terms of above.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 04, 2018
Pp/gsr
