Delhi High Court
Rajeev Kapoor vs Janak Kapoor & Anr on 6 December, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 6th December, 2021
+ RFA 165/2020, CM No. 26028/2021
RAJEEV KAPOOR
..... Appellant
Through: Mr. Pramod Ahuja, Adv.
versus
JANAK KAPOOR & ANR.
..... Respondents
Through: Mr. Jai Sahai Endlaw and
Mr. Ashish Kumar, Advs. for R-1
Mr. R. K. Saini and Mr. Ankit Singh,
Advs. for R-2
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
1. This appeal has been filed by the appellant against the order
dated December 17, 2019 whereby the Trial Court had rejected the
counter-claim filed by the appellant, who is defendant No.1 in a Suit
filed by the respondent No.1 Smt. Janak Kapoor (Janak Kapoor)
before it.
2. The brief facts leading to the filing of this appeal are that
Late Kewal Krishan Kapoor, the father of the appellant and the
respondent No.2 and the husband of the respondent No.1 had
purchased a property bearing No.8A/140, WEA, Karol Bagh, New
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Delhi ('suit property', for short) from one Dhruv Kumar in the year
1974. It was his self-acquired property. He had, by a Will dated
August 22, 1994, bequeathed the property to his wife Janak Kapoor
/ respondent No.1 herein, with the observation that if she is not alive
at the time of his death, the suit property would be inherited equally
by his two sons, i.e., Rajeev Kapoor (appellant) and Amit Kapoor
(respondent No.2). On November 21, 1994, Delhi Development
Authority ('DDA', for short) mutated the suit property in the name
of Janak Kapoor / respondent No.1. The property stood transferred
in the name of the Janak Kapoor / respondent No.1 with the 'No
Objection' from all her children and a conveyance deed was
executed by the DDA on June 01, 2012. Janak Kapoor /
respondent No.1 became the absolute owner of the suit property.
3. It is noted from the record that the suit property being old,
Janak Kapoor / respondent No.1 thought it appropriate to rebuild the
property. A builder was engaged, to whom one floor i.e. the Second
floor of the proposed new building was allocated. In other words,
the suit property comprising of stilt parking, the upper ground floor,
first floor, third floor and the roof rights would come to the share of
Janak Kapoor / respondent No.1, whereas the Second floor would
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be appropriated by the builder. After the super structure of the new
building was built, due to delay in the completion of the project, the
same was taken over and completed by Janak Kapoor / respondent
No.1. The second floor was peacefully handed over to the property
developer, who further sold it to a third party. After the building
was completed, her sons, Rajeev Kapoor / appellant and Amit
Kapoor / respondent No.2 occupied the upper ground floor and the
first floor of the suit property. Janak Kapoor / respondent No.1
gifted the third floor to her married daughter Roma Malhotra vide
gift deed dated November 04, 2015 who was living in her
matrimonial home and Janak Kapoor occupied the top floor, herself.
4. In the above background, Amit Kapoor / respondent No.2,
had on April 17, 2017, filed a suit with the following prayers:
"a) To cancel the Gift Deed dated 4.11.2015 executed by
Defendant No. 1 in respect of 3rd floor of the suit property
No. 8A/140, W.E.A. Karol Bagh, New Delhi-110 005, in
favour of defendant no. 2 and registered vide Registration
No. 8463 in Book No. 1, Volume No. 16222 on pages 1 to 8
before the subRegistrar-lll, Delhi ;
b) To pass Money Decree in favour of the plaintiff and
against the defendant no.l & 2, thereby directing her to pay
to the plaintiff his share of an amount of Rs.20,00,000/-
(Rupees Twenty lacs only) with interest @18% per annum
for the entire period till its realization and also to pay the
amount of joint fixed deposits which she got illegally
encashed;
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c) To pass a Decree of Permanent Injunction in favour of the
plaintiff and against the defendant no.l and 2 their agents,
assignees and associates, thereby restraining them from
dispossessing the plaintiff and also from selling or creating
any third party interest in the aforesaid suit property and
from encashing the remaining fixed deposits which are in
the joint name of the plaintiff and defendant no. 1.
d) To Award the cost of the suit in favour of the plaintiff and
against the defendants no. 1 & 2."
5. The suit was dismissed by this Court in terms of order dated
May 30, 2019, in FAO No.469/2017, which was filed by Janak
Kapoor/respondent No.1 herein and Roma Malhotra, against the
dismissal of their application under Order VII Rule 11 CPC, in the
suit filed by Amit Kapoor/respondent No.2. The review petition
filed by Amit Kapoor/respondent No.2 seeking review of order
dated May 30, 2019 was also dismissed. The Special Leave
Petitions filed by Rajeev Kapoor/appellant and Amit Kapoor/
respondent No.2 were also dismissed by the Supreme Court on
October 18, 2019 and January 07, 2020 respectively. On April 21,
2017, Janak Kapoor/respondent No.1 filed a Suit being CS 42/2019
(Old No.1515/2017) for different prayers including for Mandatory
Injunction praying for a direction to Rajeev Kapoor / appellant and
Amit Kapoor/respondent No.2 to remove themselves from the upper
ground floor and first floor of the suit property. The said Suit is
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pending consideration before the Trial Court. Along with the written
statement, Rajeev Kapoor/ appellant had filed a counter-claim. The
prayers in the counter-claim are the following:
"(a) That a Declatory decree may please be passed in favor
of Defendant No.l and against the Plaintiff declaring that
the Mutation dated 21.11.1994 carried out by D.D.A. may
be please be cancelled & declared null & void and not
liable to be operative as all the legal heirs have not signed
the documents for Mutation. That the Mutation has been
carried out against all norms procedures, rules &
regulations of the D.D.A. and were not followed by the
Plaintiff as well as by the D.D.A. in carrying out the
Mutation in favor of the Plaintiff.
(b) That a Declatory decree may please be passed in favor
of Defendant No.l and against the Plaintiff declaring that
Conveyance Deed dated 01.06.2012 is also illegal & void
and ordered to be cancelled, not liable to be operative
because the same was also executed on the basis of illegal
document i.e. Mutation letter dated 21.11.1994 and cannot
be allowed to be implemented by the Plaintiff against the
Defendant No.l as the Plaintiff played fraud with the
Defendants. The same may be declared null & void as the
same was got executed in her favor on the basis of wrong
facts & misrepresentation by the Plaintiff before the D.D.A.
(c) To cancel the Gift Deed dated 02.11.2015 executed by
the Plaintiff in favor of Mrs. Roma Malhotra for the third
floor of the Suit property bearing No.8A/140, W.E.A, Karol
Bagh, New Delhi and registered with the office of Sub-
Registrar vide Registration No.8463 in Book No.l Volume
No. 16222 on Page No. 1 to 8 registered on 04.11.2015 be
declared as null & void as Plaintiff was not owner nor
competent to execute the Gift Deed in favor of her daughter
as the subject matter of the property belongs to the
Defendants and not to the Plaintiff.
(d) It is therefore prayed to this Hon‟ble Court that the
Counter claim for a sum of Rs.24 Lacs be decreed in favour
of Defendant No.1 and against the Plaintiff. The said
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amount is claimed by the Defendant No.1 uptill the date of
filing the Suit with future interest at the rate of 12% p.a. till
realization be also passed in favour of the Defendant No.1
and against the Plaintiff with cot of the Suit along with the
cost of Counter claim.
(e) That a decree for Rendition of accounts be passed in
favor of Defendant No.1 and against the Plaintiff and the
Plaintiff should be directed to submit to this Hon'ble Court,
true & correct Accounts of the amount i.e. Rs.60 Lacs
received by her from the Builder and thereafter to submit
accounts and also to give the details of the Interest so
received by her on the F.D.s in the Oriental bank of
Commerce and Union Bank of India, Karol Bagh branch as
well as in the other banks for which no account has been
given by the Plaintiff to the Defendant No.1 as on date. The
Plaintiff is also liable to give account of the amount so
received by her from the girls to whom she has been keeping
as "Paying Guest" on Third floor of the Suit property which
portion belongs to the Defendants. The Defendant No.1 will
pay the requisite Court fee after the true & correct accounts
are placed before this Hon'ble Court by the Plaintiff and
Defendant No.1's specific share comes in his hand,
thereafter the appropriate Court fee will be paid at that
time.
(f) That a declatory decree may please be passed in
favor of the Defendant No. 1 declaring him that he is in
Adverse Possession of the property for the last more than 20
years without any interruption from any one adverse to the
Plaintiff. As he has been living in the property as his own
right and not with the permission of the Plaintiff.
The Counter Claim of the Defendant No.1 may please be
decreed on all the Reliefs as prayed from para No. (a) to (f)
of Counter Claim as prayed in the different paras of the
Prayer Clause. The Counter Claim of the Defendant No.1
may please be decreed in favor of Defendant No.1 and
against the Plaintiff with Cost of the Counter Claim and of
the Suit.
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Or this Hon‟ble Court may grant such other relief in favour
of the Defendant No.1 and against the Plaintiff as may deem
fit and proper."
6. Janak Kapoor/respondent No.1 herein has filed an
application under Order VII Rule 11 CPC seeking rejection of the
counter-claim. No reply to the application was filed either by
Rajeev Kapoor/appellant herein nor by Amit Kapoor/respondent
No.2. The Trial Court, after noting the fact that in the Suit filed by
Amit Kapoor/respondent No.2 wherein he had sought the
cancellation of the Gift Deed dated November 4, 2015, executed by
Janak Kapoor/respondent No.1 in favour of Roma Malhotra,
wherein against the dismissal of her application under Order VII
Rule 11 CPC, Janak Kapoor/respondent No.1 has filed an appeal
being FAO 469/2017 before this Court, which was decided on May
30, 2019, whereby this Court has accepted the Appeal and
dismissed the Suit filed by Amit Kapoor/respondent No.2,
dismissed the counter claim of Rajeev Kapoor/appellant herein.
Rajeev Kapoor (appellant) who is defendant No.1 in the suit, had
sought declaration to the effect that the mutation dated November
21, 1994 be cancelled and declared as null and void. Similarly, the
Conveyance Deed dated June 1, 2012 and Gift Deed dated
November 2, 2015 be also declared as null and void. The Trial
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Court vide the impugned order on a finding in respect of mutation,
conveyance deed and gift deed and also the challenge, being beyond
the period of three years, inasmuch as the counter-claim having
been filed in 2017, rejected the same / counter-claim.
SUBMISSIONS:
7. The submission of Mr. Pramod Ahuja, learned Counsel for
Rajeev Kapoor/appellant herein is, the impugned order has been
passed by the Trial Court dismissing the counter-claim in the
absence of the counsel for Rajeev Kapoor/appellant as by mistake
the counsel did not note the date in his diary. Further, the Trial
Court having on May 21, 2019 framed nine issues which includes
an issue that the Trial Court does not have pecuniary jurisdiction,
inasmuch as Janak Kapoor/respondent No.1 having filed a Suit for
Mandatory Injunction with respect to two floors and had affixed a
Court Fee of ₹13/- only, though the value of each floor is
₹2,25,00,000/- which has to be decided as a preliminary issue, could
not have rejected the counter claim.
8. He fairly stated that though the challenge to the mutation
order / conveyance deed / gift deed by Rajeev Kapoor/appellant,
shall be unsustainable, in view of the order passed by this Court in
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FAO No.469/2017 dated May 30, 2019, still the claim of adverse
possession of the suit property for the last 47 years since 1973-
1974, i.e., from the period, the father of the appellant purchased the
property, the counter claim could not have been dismissed. He did
state even if the Trial Court did not frame any issue of adverse
possession but the fact the Supreme Court has held that the plea of
adverse possession can also be taken now, the counter-claim was
maintainable and could not be rejected. He seeks the payer as made
in the appeal.
9. On the other hand Mr.Jai Sahai Endlaw and Mr.Anuj Gupta,
learned counsel appearing for Janak Kapoor/respondent No.1 had at
the outset stated that, Mr. Ahuja having fairly conceded before this
Court that in view of the Judgment dated May 30, 2019 passed in
FAO No.469/2017, it stood adjudged that the Will dated August 22,
1994 of Kewal Kishore Kapoor gives the sole and absolute right in
the Suit property to Janak Kapoor/ respondent No.1, the counter
claim was rightly rejected. The claim of Rajeev Kapoor/appellant
regarding the suit property and rights arising therefrom are without
any cause of action. According to them, similarly the claim of
Rajeev Kapoor/ appellant with regard to money received from the
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builder and rendition of accounts of rent, are without any cause of
action and is hit by res-judicata. They have also stated that it is a
settled position of law in terms of Order VIII Rule 6(A) to 6(G) of
CPC a counter-claim is a separate suit and can be decided
separately. In the counter-claim Rajeev Kapoor / appellant had
sought declaration, as the owner of the suit property on the strength
of Will dated August 22, 1994. Simultaneously, they also took the
plea of ownership by adverse possession, which is unsustainable in
view of the position of law on adverse possession being well-settled
inasmuch as; (i) the plea of title and adverse possession are
mutually inconsistent; (ii) mere long occupation does not amount to
adverse possession; (iii) the person who claims title over the
property on the strength of adverse possession must necessarily first
admit the ownership of the true owner; (iv) the person raising a plea
of adverse possession need to prove wrongful dispossession of the
original owner; (v) the action of adverse possession commences in a
wrongful act of taking possession of the property of another person
and such wrongful possession is maintained against a right being
the ownership right of the owner of the property. The propositions
of law being not pleaded and no issue on adverse possession having
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been framed, by the Trial Court, the prayer in the counter claim in
that regard is also not sustainable.
10. They further stated that from the appellant's own averments
in Para 18 of the appeal, Rajeev Kapoor/appellant is not in
permissive occupation of the suit property as Janak Kapoor/
respondent No.1 is in occupation and residing therein. According to
them it is a matter of record that both, i.e., appellant and respondent
No.2 herein gave NOC in favour of Janak Kapoor/respondent No.1,
meaning thereby that till June 01, 2012, the appellant and
respondent No.2 raised no objection to the title of Janak Kapoor/
respondent No.1 over the suit property. In the light of these
admissions the basic ingredient of lapse of 12 years since the date of
possession becoming adverse, is missing. The counter-claim is
dated July 1, 2017, i.e., filed after 5 years from the date of Rajeev
Kapoor/appellant recognizing his mother as true owner of the suit
property. Hence, the plea of adverse possession is futile and not
maintainable. Thus the counter-claim lacks cause of action,
substance, merit and also suffers from bar of limitation qua
mutation dated November 21, 1994 and conveyance deed dated
June 1, 2012. Further, if such claim of adverse possession of
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Rajeev Kapoor/appellant is approved, then every-one who is staying
in the property of the parents under permissive occupation from his
parents will become owner within 12 years.
11. Further a claim of so-called ownership by adverse
possession is totally inconsistent to the object and spirit of
provisions of Maintenance and Welfare of Parents and Senior
Citizens Act, 2007. They seek the dismissal of the appeal. In
support of their submissions, they have relied upon the following
Judgments:
1. Narasamma and Ors. v. A. Krishnappa (Dead) Through
LRs., 2020 AIR (SC) 4178;
2. Pankaj Shah and Anr. v. Rafat, 2018 (170) DRJ 346;
3. Dagadabai (Dead) by Lrs. v. Abbas @ Gulam Rustam
Pinjari, 2017 (5) SLT 433;
4. Kirti Pradeep Sood and Ors. v. Keshav Sood 2017 (238)
DLT 52;
5. Chattar Singh Matharoo v. Ashwami Mudgil and Ors.
2015 (10) AD Delhi 508; and
6. T. Anjanappa v. Somalingappa 2006 (7) SCC 570.
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12. Mr.R.K. Saini, learned Counsel appearing for Amit
Kapoor/respondent No.2 in his submissions stated that the findings
of this Court in FAO No.469/2017 dated May 30, 2019 with regard
to the Conveyance Deed and mutation in favour of Janak
Kapoor/respondent No.1, mother of the appellant, cannot be called
as "findings" in law as they are not only per-incuriam but also not
ratio decidendi binding the parties as these were not issues directly
involved or arising for determination in the appeal, which was not
filed against a final order / decree passed in the suit but only against
an order passed in an application under Order VII Rule 11 CPC.
Therefore, it could not have decided anything more than that. He
stated a decision is only an authority for what it actually decides.
What is of the essence in a decision is its ratio and not other
observations found therein nor what logically follows from the
various observations made in it. In this regard, Mr. Saini has relied
upon the following Judgments:
1. Krishena Kumar v. UOI, AIR 1990 SC 1782;
2. The State of Orissa v. Sudhansu Sekhar Misra and Ors.
1968 SCR (2) 154; and
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3. Dalbir Singh and Ors. vs. State of Punjab, 1979 (3) SCC
13. In support of his submission that the findings being are per-
incuriam because if an issue is neither raised nor argued, the same
would not be a precedent to be binding on the Courts, Mr. Saini has
relied upon N. Bhargavan Pillai v. State of Kerala, AIR 2004 SC
2317 & Brahma Prakash v. State of UP 2006 (2) ESC 1017.
14. That apart, Mr. Saini has relied upon the judgment in Ashok
Chaudhary v. Inderjit Sandhu, 1998 (47) DRJ 575; wherein it was
held that the true criterion for determining the question of court fee
in such cases is the substance of the relief claimed as disclosed by
the plaint taken as a whole and not merely the form in which the
relief claimed is expressed.
15. That apart, he stated, it is a settled law that the dismissal of
SLP in limini does not amount to a final adjudication of the issues
raised by the parties involved in the case, as it is actually and is only
the refusal on the part of the court to exercise its special and
discretionary jurisdiction to hear the case further, and nothing more.
It is not and cannot be an adjudication of the issues involved in the
case on merits after application of mind thereon. In support of his
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submission, Mr. Saini has relied upon the Judgment in the cases of
State of Punjab v. Davinder Pal Singh, (2011) 14 SCC 113 &
Supreme Court Employees Welfare v. Union of India, AIR 1990
SC 334. He also stated that the proposition advanced by Mr.
Endlaw and Mr. Gupta that the issues raised / framed can be
decided in the Suit for Mandatory Injunction and Recovery filed by
respondent No.1, is fallacious and wholly illegal because Janak
Kapoor/respondent No.1 by way of Permanent Injunction is seeking
eviction of Rajeev Kapoor/appellant and Amit Kapoor/respondent
No.2 from two floors of the suit property and each floor is worth
Rs.2.5 Crores, which can only be done in a Suit for Possession and
paying ad-valorem Court Fees on the current market value of the
property. Moreover, if the stand of Mr. Endlaw and Mr. Gupta, that
the issues raised / framed in the counter-claim filed by Rajeev
Kapoor/appellant, can be decided in the Suit for Permanent
Injunction and Recovery filed by her, then what is the difficulty /
harm / prejudice caused, if both the Suit and counter-claim are tried
together which in any case was going to happen. It is settled law
that the issue of limitation is a mixed question of fact and law and it
cannot and need not be decided in an application under Order VII
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Rule 11 CPC and at the most to be just and fair to the parties, it
could have been decided by framing a preliminary issue, to that
effect and giving an opportunity to Rajeev Kapoor/appellant to
prove it in his favour with the help of evidence, if required and after
decision thereupon the suit would have proceeded further
accordingly. According to him, the onus to prove that the suit is
barred by limitation would be upon the appellant and respondent
No.2 and to first raise such an objection in the written statement and
get an issue framed to that effect and request the Court for treating it
as a preliminary issue and decide it first before proceeding with the
suit would have been appropriate, rather than take a short cut and
avoid a proper determination of the said issue by filing an
application under Order VII Rule 11 CPC and that too after filing of
written statement and framing of the issues. In fact, in such a
situation, the application itself was unwarranted and obviously was
not bona fide and not liable to be maintained by the Court.
Moreover, the Trial Court by way of the impugned order dated
December 17, 2019 could not have allowed the application by
merely stating that they are beyond the period of three years. It was
not a case of three years inflexible statutory period for limitation
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and Section 3 (2) (b) of the Limitation Act applicable to it provides
as under:
"(b) any claim by way of a set off or a counter claim, shall
be treated ''as a separate-suit and shall be deemed to have
been instituted-
(i) In the case of a set off, on the same date as the suit
in which the set off is pleaded;
(ii) In the case of a counter claim, on the date on
which the counter claim is made in court; (three years
from the date when the right to sue first accrues)"
16. He referred to the Judgment of the Supreme Court in the
case of Ashok Kumar Kalra v. Surendra Agnihotri (2020) 2 SCC
394. According to Mr. Saini without first deciding and giving a
finding that the cause of action to file a suit accrued to Janak
Kapoor/respondent No.1 within the last three years or not and
knocking out the appellant at the threshold without trial and
opportunity to prove his case is totally illegal, erroneous and unjust.
According to him, right to sue had accrued to Janak
Kapoor/respondent No.1 for mandatory injunction and for
possession in the year 2017 and Rajeev Kapoor/appellant filed his
counter-claim along with written statement in July, 2017 itself.
Therefore, it was within time. He stated that it is a cardinal
principle of civil law that every litigant has a right to have his day in
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the Court and the Courts should endeavour to decide cases on merit
after trial and avoid disposing them off on technicality. The
approach of Janak Kapoor/respondent No.1 was only to ensure that
the case filed against her by Rajeev Kapoor/appellant and Amit
Kapoor/respondent No.2 did not see the light of the day and they do
not get an opportunity to prove their case. It is also proved that
earlier in the Suit for Declaration filed by Amit Kapoor/respondent
No.2, declaring the Gift Deed dated November 4, 2015 as illegal,
null and void in regard to third floor of the property executed by
Janak Kapoor/respondent No.1 in favour of her married daughter
and also Janak Kapoor/respondent No.1 filed an application under
Order VII Rule 11 CPC to get the suit dismissed at the threshold in
the Trial Court in which she succeeded. He also stated that the
following facts show the unfortunate aspect of the case:
"(a) The R-1 mother is 84 years old and has no other sons.
The property' is not the self acquired of the R-1 mother but
is self acquired' property of her husband and the father of
the appellant and'R-2, which he clearly Intended to give and
go to his two sons, in equal share and nothing out of that to
his married daughter (to whom the R-2 has recently gifted
one floor already belonging to . her) to create artificial
shortage of accommodation with her and to create grounds
for eviction of the Appellant and R-2 from the 2 floors in the
possession In a pre-planned manner and in furtherance of
the conspiracy hatched by her married daughter n and son-
in-law, .
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(b) The R-1 mother is aware that her two sons Appellant
and R-2 are not owning any property in Delhi where they
could go and reside, if god forbid they are directed to or
have to vacate two floors in their Occupation of property
along with their 4 children (2 minor daughters and one
marriageable age daughter and one minor son) and why
does she need and would do with the said two floors when it
is her self made claim that she cannot live alone and is
depended 'upon her married daughter (who is allegedly
looking after her from her separate and independent
matrimonial house owned by her husband) and to whom she
has already gifted one floor (third) in the property from
where itself she can easily be looked after by her married
daughter.
(c) It is unimaginable and inconceivable that a
grandmother would be least concerned with the marriage of
and settling down of her marriageable age granddaughter
and would not want to give her even a penny and would
rather throw her out on road along with her father (her son)
and other 3 minor grand children including 2 daughters,
especially when her grandfather died even before her birth
and her father got only a right in the property which also
the grand mother is trying to take away."
Accordingly, he prays the impugned order be set aside.
17. Having heard the learned counsel for the parties and perused
the record, the issue which arises for consideration is whether the
Trial Court is justified in dismissing the counter claim of Rajeev
Kapoor/appellant in a suit filed by Janak Kapoor/respondent No.1,
being CS No.42/19 (1515/17 old) Janak Kapoor v. Rajeev Kapoor
and Anr. The suit filed by Janak Kapoor/respondent No.1 is for a
decree of permanent injunction against Rajeev Kapoor/appellant
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and Amit Kapoor/respondent No.2 herein restraining them from
creating third party interest or part with possession, of the upper
ground floor and the first floor of the suit property i.e. 8A/140,
W.E.A., Karol Bagh, New Delhi, and also seeking a direction
against them to vacate the upper ground floor and first floor of the
suit property etc. Rajeev Kapoor/appellant had filed a counter claim
with the prayers which have already been noted above. In substance,
Rajeev Kapoor/appellant had filed counter claim seeking
declaration with regard to mutation dated November 21, 1994;
conveyance deed dated June 01, 2012 executed by the DDA; gift
deed dated November 02, 2015 executed by Janak Kapoor/
respondent No.1 in favour of Roma Malhotra (her daughter) with
regard to third floor of the suit property, be treated as null and void.
The prayer in the counter claim is also for recovery of ₹24 Lacs;
rendition of accounts against Janak Kapoor/respondent No.1 herein
with regard to ₹60 Lacs received by her from the builder; the
interest received by her on the FDRs; amount received from the
girls who were kept as paying guest on the third floor; further a
declaration in his favour that he is in adverse possession of the
property for last more than 20 years without interruption from
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anyone, adverse to Janak Kapoor/respondent No.1 as he is living in
the property on his own right and not with the permission of Janak
Kapoor/respondent No.1.
18. There is no dispute that the impugned order has been passed
in an application under Order VII Rule 11 CPC filed by Janak
Kapoor/respondent No.1 (plaintiff in the suit). The ground on
which the application has been filed is that in view of the judgment
of this Court in FAO 469/2017 dated May 30, 2019 by which the
appeal filed by Janak Kapoor/respondent No.1 against the order of
the Trial Court rejecting her application under Order VII Rule 11
CPC; was allowed whereby this Court dismissed the suit filed by
the brother of the appellant namely Amit Kapoor/respondent No.2
herein.
19. The findings of this Court in the order dated May 30, 2019
in FAO No.469/2017 are the following:
"3. The appellants i.e. the mother and daughter had
contested the maintainability of the suit and sought its
dismissal under Order 7 Rule 11 CPC on the ground that
i) the absolute right having been conveyed to the mother
in terms of the Will and accepted without any demur by
the respondents - Mr. Amit Kapoor and Mr. Rajiv
Kapoor, resulting in the Conveyance Deed in favour of
the mother, it had extinguished all rights, if any, in favour
of the sons; ii) that after the execution of the Conveyance
Deed dated 01.06.2012 by the DDA, appellant no.1 - Ms.
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Janak Kapoor became the absolute owner of the suit
property, it was for her to use, develop or dispose-off as
she desired; iii) the Collaboration Agreement with the
property developer did not create or suggest any rights in
favour of the sons and iv) the mother‟s share would come
to her except for the second floor, which was to be given
to the property developer for his investment in developing
the property.
4. The learned counsel for the appellants submits that
even the farfetched argument, that a limited right was
granted to the mother is not made out, because the plain
language of the Will. It is argued that therefore, the suit
is baseless and should be rejected/dismissed. The Will
reads as under:-
" I, Kewal Kishan Kapoor Son of Shri Babu Lal
Kapoor Resident of 8A/ 140, W.E.A., Karoi Bagh, New
Delhi - 110005, Aged 59 years, make this Will and
Testament on this 22nd August 1994 at New Delhi of
my own free will and pleasure and in full possession of
my senses.
I have made this testamentary or deposition of any
kind as far as any assets are concerned but in case any
such deposition has been made the same is hereby
revoked and cancelled. My family consist of myself,
wife and my following children:
Wife - Smt. Janak Kapor
Sons :
1. Shri Rajeev Kapoor
2. Shri Amit Kapoor Daughter: Mrs. Roma Malhotra
I have been living all along with my wife and sons
who have been looking after me.
I own following assets and after my death these assets
shall be given as follows :-
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I own a house no. 8A/140, W.E.A. Karol Bagh/ New
Delhi - 110005 which is my self acquired property
which I bequeath to my wife after my death and after
her death or if she is not alive at the time of my death
the property will be inherited by my two sons equally."
(emphasis supplied)
5. The language of the bequeathal is clear and
unambiguous. The plain reading of the same implies that
the self acquired property i.e. the suit property of the
Testator Mr. Kewal Krishan Kapoor would be inherited,
after his death, by his wife and in the event that she
predeceased him, it would go in equal share to his sons.
In other words, the sons would inherit the suit property
only if their mother was not alive. Fortunately, the
mother is alive and she would inherit the suit property.
The sons would have no rights at all. The aforesaid
bequeathal does not give the mother a limited right but an
absolute right and she would be free to utilise the same
and dispose it off at her free will. The impugned order
refers to the Will, which in any case was superseded and
had an implicit acceptance of the plaintiff inasmuch as he
had given his consent to the DDA for transferring the
property exclusively in the name of the mother, which
resulted in the Conveyance Deed in her favour. The
Conveyance Deed is not disputed and is not under
challenge. Therefore, once the suit property has been
conveyed to the mother and then she transferred a
portion thereof to her daughter by way of a Registered
Gift Deed, the same cannot be challenged. That she is the
absolute owner of the suit property stands duly
established and accepted by the plaintiff himself. That
being the position, the plaintiff would have no cause of
action or basis to file the suit. In the circumstances, the
suit would not be maintainable.
6. Mr. Pramod Ahuja, the learned counsel for
respondents, relies upon the judgment of the Supreme
Court in P.V. Guru Raj Reddy vs. P. Neeradha Reddy &
Ors., (2015) 8 SCC 331, which held, inter alia, that the
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plaint could be rejected only if it ex facie did not disclose
a cause of action or on the reading thereof, the suit
appears to be barred by any law. Indeed, that is the
position in this case because the plaint itself discloses
that the Conveyance Deed dated 01.06.2012 had been
issued to the mother after „No Objection‟ by the plaintiff
- Mr. Amit Kapoor and the other son Mr. Rajiv Kapoor,
who were the purported beneficiaries of the Will i.e. they
knew the import of the Will and voluntarily gave consent
of issuance of the aforesaid Conveyance Deed in favour
of the mother. Having done so, reference to the Will or
any other document prior thereto would be of no
consequence. Therefore, once the absolute right of the
mother has been accepted by the sons, there will be no
cause of action for filing the suit.
7. Mr. Anuj Gupta, the learned counsel for the appellants,
submits that that the rights of a Hindu woman are
secured under section 14 (1) of the Hindu Marriage
Succession Act, 1956, which reads as under:-
"14. Property of a female Hindu to be her absolute
property
(1) Any property possessed by a Female Hindu,
whether acquired before or after the commencement of
this Act, shall be held by her as full owner thereof and
not as a limited owner.
Explanation: In this sub-section, "property" includes
both movable and immovable property acquired by a
female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of
maintenance, or by gift from any person, whether a
relative or not, before, at or after her marriage, or by
her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and
also any such property held by her as stridhana
immediately before the commencement of this Act."
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8. In other words, once the DDA had executed the
Conveyance Deed, the right of appellant no. 1 - Ms.
Janak Kapoor in the said suit property becomes absolute.
9. Mr Ahuja further submits that the mother has filed a
suit for mandatory injunction for possession of suit
property from her sons, Mr. Amit Kapoor and Mr. Rajiv
Kapoor. The suit is pending. He refers to section 14(2) of
the Hindu Marriage Succession Act, 1956, to claim right
of residence in the suit property. However, the right of
residence would commence only if it was a joint property,
whereas the suit property was self acquired by late Shri
Kewal Krishan Kapoor and bequeathed absolutely to his
wife Ms. Janak Kapoor. This fact has already been
accepted by the respondent including the plaintiff. He
cannot resile from it, just to manufacture a cause of
action."
20. A review of the aforesaid judgment dated May 30, 2019 was
sought by Amit Kapoor/respondent No.2 which was also dismissed
on September 20, 2019. The SLP's filed by Rajeev Kapoor/
appellant herein and also by Amit Kapoor, were also dismissed by
the Supreme Court. The findings in the order dated May 30, 2019
of this Court are very clear wherein this Court has in clear
unequivocal terms held that once the DDA has executed the
conveyance deed, the right of Janak Kapoor/respondent No.1 in the
suit property becomes absolute and there was no cause of action or
basis for Amit Kapoor/respondent No.2 to file a suit.
21. The prayers in the suit filed by Amit Kapoor/ respondent
No.2 are also challenging the Gift Deed dated November 04, 2015;
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seeking recovery of amount of ₹20 Lacs etc. In other words, Amit
Kapoor/respondent No.2 had claimed a right in the suit property. In
fact, Mr. Ahuja during his submissions has in view of the
conclusion of this Court in judgment dated May 30, 2019 in FAO
No.469/2017 as upheld by the Supreme Court has clearly stated that
the appellant herein cannot challenge the mutation / conveyance
deed / gift deed. If that be so, the prayers of Rajeev
Kapoor/appellant, who is also brother of Amit Kapoor/respondent
No.2 and similarly placed like respondent No.2 in the counter claim,
have been rightly rejected.
22. The plea of Mr. Ahuja is primarily that the Trial Court has
no pecuniary jurisdiction to entertain the suit seeking mandatory
injunction with regard to two floors, the value of each floor being
₹2.25 Crores, when a court fee of ₹13 only has been affixed.
Similar was the submission of Mr. Saini appearing for the
respondent No.2. Additionally, Mr. Saini stated Janak
Kapoor/respondent No.1, in her suit has in effect, sought eviction of
Rajeev Kapoor/ appellant and Amit Kapoor/respondent No.2, from
two floors of the suit property, which can only be done in a suit for
possession and by paying ad valorem court fee on the current
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market value. I am not impressed by the submissions made for more
than one reason, inasmuch as, the Trial Court has framed issues
which include the issue whether the Trial Court does not have
pecuniary jurisdiction to try the suit. The same shall be decided by
the Court after a trial and the conclusion thereof shall have a bearing
on the suit and not on the counter claim.
23. It is settled law [Ref: Jag Mohan Chawla and Ors. v. Dera
Radha Swami Satsang and Ors., (1996) 4 SCC 699] in view of the
provision of Rules 6(A) to 6(G) of Order VIII CPC that a party can
bring his / her own independent cause of action in respect of claim
that could be a subject matter of an independent suit. In other words,
the defendant can make a claim not related to or connected with the
original cause of action or matter pleaded by the plaintiff. The
counter claim is treated as a cross suit / plaint having all ingredients
of pleading, including the duty to aver cause of action, also payment
of court fee thereon. The intent of the provisions is instead of
relegating the defendant to an independent suit, to avoid multiplicity
of the proceeding and needless protraction, the legislature intended
to try both the suit and the counter claim in the same suit, as the suit
and cross suit and have them disposed of in the same trial. The
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Supreme Court held, a defendant can claim any right by way of a
counter claim, that is in respect of any cause of action that has
accrued to him even though it is an independent cause of action
averred by the plaintiff and have the same cause of action
adjudicated without relegating the defendant to file a separate suit.
24. In the said case, the Supreme Court was concerned with a
counter claim in respect of a different property which was held to be
maintainable for the reasons noted above. It is clear from the above
that counter claim, being a counter suit, could be decided on the
same parameters as a suit, including an application under Order VII
Rule 11, CPC provided the grounds exit. The framing of the issue
with regard to maintainability of the suit filed by Janak Kapoor/
respondent No.1 has no bearing on the counter claim. The decision
on the issue of the maintainability of the suit on the ground of
pecuniary jurisdiction need not await a decision on the application
under Order VII Rule 11 CPC which is filed on the ground the
counter claim lacks cause of action. Similar shall be the position on
the objection of Mr. Ahuja and Mr. Saini with regard to the issue
whether a suit for mandatory injunction is maintainable or not. It is
not the case of Mr.Ahuja and Mr.Saini, that the Trial Court does not
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have jurisdiction to try the subject matter of counter claim. In fact,
there is no objection nor any issue framed in that regard.
25. In fact, in a given situation even if the plaintiff i.e.
respondent No.1 herein withdraws her suit, being a dominus litis,
the counter claim can still be decided independently. On similar
reasoning, if it held that the Trial Court does not have pecuniary
jurisdiction still the Court can decide the counter claim. In this
regard, I may refer to the judgment of the Madras High Court in
M.S. Miganed Jaffar v. M.S. Mohamed Yahya & Anr., 1987 SCC
OnLine Mad 169, wherein in paragraph 4 the Court held as under:
"4. In a suit in which counter claim had been filed, by
virtue of the amendment now enacted by Amendment Act,
1976, under O. 8 R. 6-D, C.P.C., even if the suit is
dismissed, the defendant can pursue the counter-claim
put forth by him. By seeking the withdrawal of the suit, it
results in the suit being dismissed; and inspite of it, on the
counter claim already filed by the second defendant the
court will nevertheless, proceed with that claim in view of
O. 8 R. 6-D, C.P.C. Hence the second defendant would
not in any manner be prejudiced by the suit being allowed
to be withdrawn, because the resultant effect will be, the
counter-claim made by the second defendant will be
numbered as a suit and proceeded with further."
26. Insofar as the plea of Mr. Saini that the conclusion of this
Court in FAO No.469/2017 being per incuriam and it would not
have precedential value, is without any merit. In fact, I have been
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informed during hearing that Amit Kapoor/respondent No.2 has not
even filed a written statement in the suit filed by Janak Kapoor/
respondent No.1. So, Amit Kapoor/respondent No.2, is precluded to
even make submissions on the impugned order more so on a similar
cause of action, on which counter claim is filed by Rajeev
Kapoor/appellant, the suit filed by Amit Kapoor/respondent No.2
has been dismissed, which dismissal has attained finality till
Supreme Court.
27. In fact, not only Amit Kapoor/respondent No.2 even the
appellant herein Rajeev Kapoor, had also filed an SLP against the
orders dated May 30, 2019 and September 20, 2019 which was also
dismissed. In other words, the conclusion of this Court in order
dated May 30, 2019 in FAO No.469/2017 is final, insofar as Rajeev
Kapoor/appellant and Amit Kapoor/respondent No.2 are concerned.
28. If that be so, the challenge to the mutation / conveyance
deed / gift deed is liable to be rejected. Even the claim of Rajeev
Kapoor/appellant in the counter claim with regard to recovery of
₹24 Lacs, as was claimed by Amit Kapoor/respondent No.2 (₹20
Lacs), was also rejected with the dismissal of his suit, in terms of
order dated May 30, 2019, which order has been upheld by the
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Supreme Court. Even the SLP filed by Rajeev Kapoor was
dismissed by the Supreme Court.
29. Insofar as the prayer / plea of adverse possession of Rajeev
Kapoor/appellant, is concerned, in view of the finding of this Court
vide order dated May 30, 2019 in FAO No.469/2017 that Janak
Kapoor/respondent No.1 being absolute owner of the suit property
and also she is living in the same property this plea shall also be
unsustainable.
30. I agree with the submission made by Mr. Endlaw that the
plea of adverse possession shall be unsustainable when the appellant
herein, is seeking a title in the property, which stood decided in
favour of Janak Kapoor/respondent No.1 in FAO No.469/2017 just
two years back on May 30, 2019. In other words, the plea of
adverse possession can only succeed if the appellant sets out a case
of disposition of the rightful owner (respondent No.2) for a period
of 12 years or more, i.e., the adverse possession commence in a
wrongful act of taking possession of the property of another person
and such wrongful possession is maintained against a right being
the ownership right of the owner of the property. Surely, the facts
herein does not suggest so. In fact, no issue has been framed by the
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Trial Court with regard to the plea of adverse possession of Rajeev
Kapoor/appellant. Hence, the reliance placed by Mr.Endlaw on the
judgments referred to for the propositions, as noted in paragraph 9
above, is justified.
31. Insofar as the plea of Mr. Saini that the SLP having been
dismissed in limine does not amount to final adjudication of the
issues raised by the parties involved in the case by relying upon the
judgment in State of Punjab (supra) and Supreme Court
Employees Welfare (supra) is concerned, there is no dispute on the
proposition advanced but with the dismissal of the SLP's, the
conclusion of this Court in FAO No.469/2017 qua the parties has
attained finality. The parties therein are the same as the parties
herein. The plea is rejected.
32. The plea of Mr. Saini that the findings of this Court in order
dated May 30, 2019 in FAO No.469/2017 are not only per-incuriam
but there is no ratio decidendi, which is binding on the parties, as
the issues which arise for consideration were not the issues directly
involved or arising for determination for a decision, and was not
against a final decree / decree passed in the suit but only against an
order passed on application under Order VII Rule 11, is also
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unmerited as the issue with regard to the title of Janak Kapoor/
respondent No.1 having been decided in the FAO No.469/2017 and
as reiterated in the review petition and upheld by the Supreme
Court, to that extent the finding is final and binding and shall have a
bearing on the prayers made in the counter claim filed by the
appellant. The same has been rightly dismissed by the Trial Court.
Mr. Ahuja had also challenged the impugned order on the ground
that the Trila Court had decided the counter claim in his absence
being the counsel for the appellant. In view of the fact that I have
heard Mr. Ahuja in detail and deciding the appeal, I do not see any
reason to advert to the said submission made by him.
33. One of the submissions of Mr. Saini is that the issue of
limitation on which the counter claim is rejected is a mixed question
of fact and law and could not have been decided in an application
under Order VII Rule 11 CPC. Suffice to state, the conclusion
drawn by me above, clearly establish that there is no cause of action
for the appellant to file the counter claim and was rightly rejected in
an application under Order VII Rule 11 CPC.
34. The reliance placed by Mr. Saini in support of his aforesaid
submissions in Krishena Kumar (supra), The State of Orissa
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(supra), Dalbir Singh and Ors. (supra), N. Bhargavan Pillai
(supra), Brahma Prakash (supra) and also Ashok Chaudhary
(supra) is misplaced, as they have no applicability in the facts of
this case.
35. In view of my above discussion, the present appeal is
unmerited, the same is dismissed.
CM No. 26028/2021
Having heard and decided the appeal with the consent of the
parties, the application has become infructuous. The same is
dismissed.
V. KAMESWAR RAO, J
DECEMBER 06, 2021/jg/aky
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