Krishan Lal vs Land & Development Office, ...
2018 Latest Caselaw 5508 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 12th September, 2018
+                                  RSA 130/2018
         KRISHAN LAL                                       ..... Appellant
                            Through:       Mr. Manoj Kumar, Adv.
                                       Versus
    LAND & DEVELOPMENT OFFICE, MINISTRY
    OF URBAN DEVELOPMENT
    GOVERNMENT OF INDIA & ANR          ..... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

CM No.37311/2018 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

RSA 130/2018, CM No.37310/2018 (for stay), CM Nos.37312/2018 & 37313/2018 (for condonation of delay of 20 days & 105 days in filing and re-filing the appeal respectively)

3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 15th January, 2018 in RCA No.253/2016 of the Court of Additional District Judge-03, East] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant / plaintiff against the judgment and decree [dated 9th March, 2016 in Suit No.6938/2016 of the Court of Additional Senior Civil Judge, East] of dismissal as not maintainable of the suit filed by the appellant / plaintiff.

4. Though the appeal is accompanied with applications for condonation of delay of 20 days in filing the appeal and 105 days in re-filing the appeal but the question of considering the said applications will arise only if the appeal is found to be entailing a substantial question of law which is the sine qua non for entertaining a second appeal as reiterated by the Supreme Court recently in Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562, Damodar Lal Vs. Sohan Devi (2016) 3 SCC 78 and Vijay Arjun Bhagat Vs. Nana Laxman Tapkire (2018) SCC OnLine SC 518.

5. As such, the counsel for the appellant / plaintiff has been heard and the relevant copies of the suit court record annexed to the memorandum of appeal perused.

6. The counsel for the appellant / plaintiff, during the course of hearing, has made a number of factually incorrect statements contrary to the record and only when his attention is drawn to the record, has admitted the incorrectnesses. Such practice, of stating wrong facts to the Court for the sake of having notice of the appeal issued, has to be deprecated.

7. The appellant / plaintiff instituted the suit, from which this Second Appeal arises, impleading only the Land & Development Office (L&DO) of the Government of India as respondent/defendant thereto, seeking (i) mandatory injunction directing the L&DO to effect mutation of property No.8/106, Geeta Colony, Delhi in the name of the plaintiff; and, (ii) permanent injunction restraining the respondent / defendant L&DO from effecting mutation of the said property in favour of any other person.

8. The said suit was contested by the respondent / defendant L&DO by filing a written statement.

9. One Meenu, now respondent / defendant no.2, made an application for impleadment as a defendant in the suit and which application was allowed and the said Meenu also filed a written statement. The appellant / plaintiff filed replications to the said written statements.

10. On the pleadings of the parties, the Suit Court on 7 th April, 2015 framed the following as a preliminary issue:

"Whether suit is maintainable in its present form."

11. The appellant / plaintiff instituted the suit from which this Second Appeal arises, pleading (i) that his father Diwan Chand was the allottee of the aforesaid property and had died on 4th January, 1986 leaving a widow viz. Ram Piari, three sons including the appellant / plaintiff and two daughters; (ii) that the mother of the appellant / plaintiff died in the year 1988; (iii) that the other legal heirs of deceased Diwan Chand executed a Relinquishment Deed, duly registered, dated 5th February, 1992 in favour of the appellant / plaintiff and in consequence thereof, the appellant / plaintiff became the sole owner of the said property; (iv) that though the appellant / plaintiff applied to the respondent / defendant L&DO for mutation of the property in his name but no action was taken thereon.

12. The respondent / defendant L&DO, in its written statement, inter alia pleaded, (a) that the property was allotted to Diwan Chand on 15 th October, 1952; (b) that after the demise of Diwan Chand, Purshottam Lal, one of the sons of Diwan Chand applied to the respondent / defendant L&DO on 10 th July, 1989 for substitution of his name in place of the name of Diwan Chand on the basis of Will of Diwan Chand in his favour; (c) however the said application was not pursued; (d) that thereafter, on 14th September, 1990, the

appellant / plaintiff applied for mutation of the property in favour of his son Prem Sagar, on the basis of a Will dated 23rd April, 1983 of Diwan Chand in favour of Prem Sagar; (e) that yet another application dated 18 th July, 1991 was filed by Usha Rani, wife of Purshottam Lal, who had earlier made application dated 10th July, 1989, for mutation in her name on the basis of Will dated 17th March, 1980 of Diwan Chand in favour of Purshottam Lal;

(f) that yet another application was made by respondent / defendant no.2 Meenu, daughter of one of the daughters of Diwan Chand, claiming that the widow of Diwan Chand executed transfer documents with respect to the property in favour of the daughter of Diwan Chand; (g) that it was only thereafter that the appellant / plaintiff, in the year 2008, made the application subject matter of the suit; (h) that the appellant / plaintiff was informed, that till the final outcome of court cases mentioned in the application of respondent / defendant no.2 Meenu, the property could not be mutated in his favour; (i) that the appellant / plaintiff still instituted the suit, falsely representing that no response was received; and, (j) that the appellant / plaintiff had earlier filed a Civil Suit being CS No.125/1991 and a probate petition for probate of the Will of Diwan Chand in favour of Prem Sagar, son of the appellant / plaintiff, but both of which were dismissed.

13. The respondent / defendant no.2 Meenu in her written statement pleaded (i) that yet another suit was filed by the appellant / plaintiff as natural guardian of his son Prem Sagar with respect to the said property; (ii) that with the dismissal of the probate case filed by the appellant / plaintiff, his claim that his minor son Prem Sagar had inherited the property under the Will of Diwan Chand stood negated; (iii) that though the appellant / plaintiff had preferred FAO No.98/2007 to this Court against the order of dismissal of

probate but the said appeal was also dismissed and the Will set up by the appellant / plaintiff was declared to be fabricated and forged; (iv) that the appellant / plaintiff prior to the application for mutation filed in the year 2008, never referred to any Relinquishment Deed as claimed in the suit; (v) that the respondent / defendant no.2 Meenu was also claiming exclusive title of the property; (vi) that the appellant / plaintiff, from the plaint in the subject suit, had suppressed all the aforesaid facts; (vii) that the consistent stand of the appellant / plaintiff till the year 2012 in the earlier legal proceedings was on the basis of Will dated 23rd April, 1983 of Diwan Chand in favour of son of the appellant / plaintiff and it is only thereafter that a new plea of Relinquishment Deed had been taken; (viii) that the heirs of Bimla Devi, daughter of Diwan Chand and the heirs of Purshottam Lal, son of Diwan Chand were not parties to the Relinquishment Deed relied upon by the appellant / plaintiff; (ix) that the appellant / plaintiff, on the basis of Relinquishment Deed, thus could not claim to have become the sole owner of the property; (x) that in the circumstances aforesaid the Relinquishment Deed was doubtful; and, (xi) that as per the dicta of the Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 594, it was incumbent upon the appellant / plaintiff to seek declaration of his title and which had also not been claimed.

14. Finding merit in the defence pleaded in the written statements of the two defendants, the suit was dismissed. The First Appellate Court dismissed the first appeal agreeing with the reasoning of the Suit Court.

15. The contention of the counsel for the appellant / plaintiff is two fold. Firstly it is contended that the disputed questions of fact have been

adjudicated without even framing issues and findings returned thereon without giving a chance to the appellant / plaintiff to prove his case. The second contention is that the past proceedings referred to, could not come in the way of appellant / plaintiff, on the basis of Relinquishment Deed, getting the relief against the respondent / defendant L&DO.

16. I have enquired from the counsel for the appellant / plaintiff, whether the heirs of Purshottam Lal, son of Diwan Chand and heirs of Bimla Devi, daughter of Diwan Chand have also relinquished their share in favour of the appellant / plaintiff.

17. The counsel for the appellant / plaintiff states that Purshottam Lal died issueless and Bimla Devi or her heirs did not execute Relinquishment Deed in favour of the appellant / plaintiff.

18. It has come on record that wife of Purshottam Lal was alive at the time of demise of Purshottam Lal and had applied to respondent / defendant L&DO for mutation in her favour.

19. The counsel for the appellant / plaintiff states that she has also died and there are no issues of Purshottam Lal.

20. Even in such an event, the share inherited by Purshottam Lal from his father, would not under Section 8 of the Hindu Succession Act, 1956 read with Schedule thereof be inherited by the appellant / plaintiff alone and it is quite clear that the appellant / plaintiff, as per his own averments, was not entitled to exclusive mutation in his favour.

21. Moreover, in the face of the conduct of the appellant / plaintiff and which is not disputed, of on an earlier occasion claiming a title in favour of

his own son under a Will and only after failing in the same, setting up a Relinquishment Deed in his favour did indeed create a doubt as to the claim of the appellant / plaintiff on the basis of Relinquishment Deed. It was incumbent upon the appellant / plaintiff to, implead all the other heirs of Diwan Chand as parties as plaintiffs to the suit so that they had an opportunity to place their stand qua the Relinquishment Deed before the Court. The appellant / plaintiff failed to implead the said necessary parties and in their absence the suit has rightly been dismissed as not maintainable.

22. The Courts are not required to mechanically put to trial suits, which suffer from inherent defects and which have no chance of succeeding, to take up the judicial time to the prejudice of other deserving cases. The Suit Court has done well to dismiss the suit as not maintainable.

23. Moreover, once the suit is dismissed as not maintainable, the appellant / plaintiff, if has any claim against the respondent / defendant L&DO, can always institute a proper proceeding.

24. Rather, the falsity of the case of the appellant / plaintiff becomes evident from the counsel for the appellant / plaintiff himself during his arguments contending that even if respondent / defendant L&DO was not willing for exclusive mutation in favour of the appellant / plaintiff, mutation should have been carried out in favour of the appellant / plaintiff merely as a co-owner, being one of the heirs of Diwan Chand.

25. However, that was not the case with which the appellant / plaintiff filed the suit or pursued the suit.

26. The appellant / plaintiff, on the basis of Relinquishment Deed and without impleading necessary or proper parties, in fact wanted to take a walkover in their absence and to their prejudice have the property mutated in his exclusive name.

27. What to talk of substantial question of law, the appeal has no merit and the proceedings culminating in this appeal are but a misadventure of the appellant / plaintiff. Owing thereto, the appeal is dismissed with costs of Rs.20,000/- payable to the respondent / defendant L&DO as a pre-condition for instituting another fresh proceedings with respect to the subject property.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 12, 2018 'gsr'..