Lalta Prasad vs Jeevan Lal
2018 Latest Caselaw 5753 Del

$~41.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     RSA 121/2017, CM No.14990/2017 (for stay) & CM No.39156/2018
      (of the appellant for restoration of the appeal).
      LALTA PRASAD                                          ..... Appellant
                          Through: Mr. Rashid Hussain, Adv.
                                     versus
      JEEVAN LAL                                        ..... Respondent
                          Through: None.
      CORAM:
      HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                          ORDER

% 24.09.2018

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 24th December, 2016 in RCA No.13/2016 (ID No.DLSE-01-000398-2014) of the Court of Additional District Judge-06 (South-East)] partly allowing the First Appeal under Section 96 of the CPC preferred by the respondent against the judgment and decree [dated 26th April, 2014 in Civil Suit No.580/2014 (Case ID No.02406C0272112011) of the Court of Civil Judge-01 (South)] of dismissal of suit filed by the respondent/plaintiff for recovery of possession of shop bearing No.9, Block A, Kalkaji Mandir, New Delhi and for rendition of accounts, damages and permanent injunction. The First Appellate Court has held the respondent/plaintiff to be entitled only to a decree for possession and held the respondent/plaintiff to be disentitled to any of the other reliefs.

2. This appeal came up first before this Court on 21 st April, 2017, when without recording any satisfaction that the same entails any substantial

question of law and without framing any substantial question of law, notice thereof was ordered to be issued and operation of the impugned judgment and decree stayed.

3. Vide subsequent order dated 8th December, 2017 the appeal was ordered to be listed on 16th March, 2018 for final disposal. None appeared for the appellant on 16th March, 2018. However, instead of dismissing the appeal in default, in the interest of justice, the appeal was posted for 14 th September, 2018.

4. On 14th September, 2018, the appellant appeared in person and on enquiry about the whereabouts of his advocate stated that he had met his advocate in his Chamber. The appellant however, inspite of enquiry did not state that the advocate will be coming to the Court to argue the appeal or not. Observing that the appellant, after obtaining stay of execution of the decree against him, cannot indulge in such conduct and further observing that even as per dicta of the Supreme Court in Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562 and Vijay Arjun Bhagat Vs. Nana Laxman Takire 2018 SCC OnLine SC 518 notice of Regular Second Appeal cannot be issued, without framing any substantial question of law, the appeal on 14th September, 2018 was dismissed for non-prosecution.

5. The appellant has filed CM No.39156/2018 for restoration of the appeal and the counsel for the appellant appears today and has been asked to satisfy this Court that the appeal raises a substantial question of law.

6. The counsel for the appellant has been heard and the copies of the Suit Court record perused.

7. The respondent/plaintiff instituted the suit from which this appeal arises, pleading (i) that he was allowed tehbazari by Mandir Sri Kalkaji in

respect of Shop N.09, Block-A, Kalkaji Mandir, Kalkaji, New Delhi and was doing petty business of pooja path goods/articles therefrom and depositing the requisite tehbazari with respect to the shop and paying electricity charges of the shop; (ii) that on 6th July, 2010, the respondent/plaintiff granted permission to the appellant/defendant, who is the brother of the father of the respondent/plaintiff, to look after the work in the said shop in the absence of the respondent/plaintiff; and, (iii) the appellant/defendant however, though took over the business from the said shop but did not account therefor to the respondent/plaintiff and when called upon to vacate the shop, did not do so. Hence, the suit for recovery of possession of the shop and for rendition of accounts of earnings from the said shop.

8. The appellant/defendant contested the suit by filing a written statement pleading (i) that the respondent/plaintiff, besides the subject shop, was owner of two more shops in the same area of Kalkaji Temple; (ii) the appellant/defendant had a son who was working in the shop aforesaid of the respondent/plaintiff for five years; (iii) that the younger brother of the respondent/plaintiff, on 1st July, 2010, killed the said son of the appellant/defendant; (iv) that the son of the appellant/defendant who was murdered by the younger brother of the respondent/plaintiff was the only source of income of the family of the appellant/defendant; (v) First Information Report (FIR) was registered with respect to the murder of the son of the appellant/defendant; (vi) the respondent/plaintiff, with the consent of his father and under a Family Settlement in the presence of the witnesses of the Kalkaji Mandir, decided to handover possession and ownership of subject shop to the appellant/defendant, to enable the appellant/defendant to

earn livelihood, and a notarised settlement before witnesses was executed and in which settlement the respondent/plaintiff unequivocally stated that thereafter the appellant/defendant will operate the subject shop and pay tehbazari and electricity charges with respect thereto; (vii) in pursuance to the aforesaid Family Settlement, the electricity bill was also got changed in the name of the appellant/defendant and the appellant/defendant only has been paying tehbazari and electricity charges with respect to the shop; and,

(viii) that the respondent/plaintiff had now turned dishonest and had filed the suit.

9. The following issues were framed in the suit on 16th May, 2012:-

"1. Whether any mutual settlement was executed between the parties, whereby the possession and ownership of shop no.9, Block A, Kalkaji Mandir, Kalkaji, New Delhi was given to the defendant? OPD

2. Whether the plaintiff is entitled for relief of possession as claimed for in the plaint?

3. Whether the plaintiff is entitled for rendition of account as claimed in the plaint?

4. Whether the plaintiff is entitled to damages/mesne profits as claimed for in the plaint?

5. Whether the plaintiff is entitled for permanent injunction as claimed in the plaint?

6. Relief."

10. The Suit Court, on the basis of evidence led, decided Issue No.1 in favour of the appellant/defendant and resultantly decided the other issues also against the respondent /plaintiff and in favour of the appellant/defendant and dismissed the suit. The Suit Court in its judgment, though noticed the plea of the respondent/plaintiff that the alleged Family Settlement was without consideration and thus void under Section 25 of the

Contract Act, 1872 but reasoned that the said plea was not tenable as it was a mutual Family Settlement and flow of consideration could not be questioned because the witnesses had deposed that the settlement was arrived at on the murder of the son of the appellant/defendant and that it was not necessary for the Court to determine as to who was involved in the said murder though there was evidence to the effect that the mutual settlement was arrived at in the wake of the murder of the son of the appellant/defendant and to provide a source of livelihood to the appellant/defendant.

11. On First Appeal being preferred by the respondent/plaintiff, the First Appellate Court has held the respondent/plaintiff entitled only to the recovery of possession reasoning (i) that the appellant/defendant had succeeded in proving that the settlement as contained in the Ex.DW1/2 was arrived at and the respondent/plaintiff had failed to prove that Ex.DW1/2 was forged; (ii) however from the pleadings as well as the evidence it was borne out that the shop in question was handed over to the appellant/defendant in lieu of murder of the son of the appellant/defendant by the younger brother of the respondent/plaintiff, so as to stop prosecution of murder case; (iii) that it was the argument of the counsel for the respondent/plaintiff that the handing over of the shop by the respondent/plaintiff by Ex.DW1/2 to the appellant/defendant, even if believed, was not lawful under Section 23 of the Contract Act; (iv) that any agreement between the parties to drop prosecution proceedings is void as its object is unlawful; (v) in the present case it was the case of the appellant/defendant that his son was murdered and for which FIR was registered; (vi) it was the admitted position that the brother of the

respondent/plaintiff remained in judicial custody for some time; (vii) the witnesses of the appellant/defendant had also admitted that there was no question of the appellant/defendant paying any consideration for the shop to the respondent/plaintiff since the shop was given to ensure that no proceedings were initiated against the younger brother of the respondent/plaintiff; and, (viii) that thus the document Ex.DW1/2 of handing over possession by the respondent/plaintiff to the appellant/defendant of the shop, to ensure that the younger brother of the respondent/plaintiff was not prosecuted, was void, unlawful and against the public policy.

12. I have perused Ex.DW1/2 at page 125-126 of this appeal paper book. The same is unregistered. No title or right in immovable property could change hands or be transferred without a registered document. The document does not qualify as a Family Settlement as laid down in Rama Nand Vs. Roop Ram 2018 SCC OnLine Del 10186 and Sanjeev Gupta Vs. Manoj Loharia 2018 SCC OnLine Del 9105. It has been held in Vijay Kumar Taneja Vs. Raj Kumar Taneja (2017) 236 DLT 601, Manickam Vs. Chinnasamy 2011 SCC OnLine Mad 938 and Sasikumar Vs. R. Munuamy MANU/TN/3107/2016 that merely because the parties to an instrument of transfer of title in immovable property are family members, does not entitle the instrument to be labelled as a Family Settlement or allow the property to be transferred without complying with the law as prescribed in Transfer of Property Act, Stamp Act and Registration Act for transfer of property.

13. At this stage, the counsel for the appellant/defendant, under instructions from the appellant/defendant, states that the appellant/defendant will be satisfied if reasonable time to vacate the shop, to enable the appellant/defendant to make alternate arrangements, is granted.

14. Issue notice to the respondent/plaintiff by all modes including dasti and also through the Advocate for the respondent/plaintiff who had appeared on 14th September, 2018, limited to the aforesaid aspect, returnable on 8th October, 2018.

15. Court Master to also telephonically inform the counsel for the respondent/plaintiff who had appeared on 14th September, 2018.

16. The appellant/defendant be not dispossessed in execution of the decree impugned in this appeal till then.

Dasti.

RAJIV SAHAI ENDLAW, J

SEPTEMBER 24, 2018 'pp'..