Delhi High Court
Daljit Singh vs Gagandeep Sidhu on 29 April, 2024
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 25 April 2024
Judgment pronounced on: 29 April 2024
+ C.R.P. 4/2024 & CM APPL. 518/2024
SH. DALJIT SINGH ..... Revisionist
Through: Ms. Kajal Chandra and Ms.
Simriti Bali, Advs.
versus
SMT. GAGANDEEP SIDHU ..... Respondent
Through: Mr. Vinay Rathi, Adv.
(DHCLSC)
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
1. This order shall decide the present Civil Revision petition filed
by the petitioner-revisionist under Section 115 of the Code of Civil
Procedure Code, 19081 assailing the Impugned Order dated
10.10.2023 passed by the learned Additional District Judge, (East),
Karkardooma Court, Delhi2 dismissing his application under Order
XII Rule 6 of the CPC filed by him in Suit bearing No. 730/2018 titled
as "Daljit Singh v. Gagandeep Sidhu".
FACTUAL BACKGROUND:
2. Briefly stated, the petitioner-revisionist is the father-in-law of
the respondent and has filed a civil suit in 2018 seeking reliefs of
CPC
Ld. ADJ/ Trial Court
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possession of the suit property, mandatory injunction and mesne
profits against the respondent/defendant on the ground that the
plaintiff/revisionist is the absolute owner of the suit property by virtue
of registered GPA, Will, Affidavit, Receipt and Agreement Deed
dated 27.07.1998 executed in favour of the plaintiff/revisionist by his
wife Smt. Khushwant Kaur.
3. The suit property consists of a ground floor and a first floor, and
the case of the revisionist/plaintiff is that he is currently in possession
of only the first floor and common passage at the ground floor of the
suit property and the respondent/defendant daughter-in-law has
unlawfully occupied the ground floor of the suit property as a
trespasser and is liable to be dispossessed therefrom.
4. It is averred by the revisionist/plaintiff that the suit property was
first purchased by Sh. Santosh Dixit by way of GPA, Agreement
Deed, Affidavit, Will dated 02.03.1990. Thereafter, the eastern portion
of the said property admeasuring 50 sq. yards i.e. the suit property,
was transferred by Sh. Santosh Dixit to Smt. Khushwant Kaur, wife of
the plaintiff/revisionist, by way of GPA, Agreement Deed, Affidavit
and Will dated 05.03.1993, who then transferred it to the
plaintiff/revisionist by way of GPA, Will, Affidavit, Receipt and
Agreement Deed dated 27.07.1998.
5. It is claimed that the respondent/defendant got married to the
revisionist/plaintiff‟s son on 14.11.2010 after which the
plaintiffs/revisionist moved their residence to the first floor and
allowed the defendant and their estranged son to reside on the ground
floor of the suit property. To cut the long story short, there arose some
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conflicts amongst the members of the family due to which the
revisionist/plaintiff was constrained to separate his kitchen from the
respondent/defendant and provide accommodation to his son and the
daughter in law on the ground floor of the suit property on a license
basis.
6. It is also alleged that since November 2011, their son and
daughter in law are residing separately. It is further alleged that
despite the separation, the defendant threatened and mistreated the
plaintiff and his wife due to which, the plaintiff/revisionist ultimately
disowned and disentitled his son and the defendant/respondent from
all his movable and immovable properties by way of publication in
daily newspaper, namely "Rashtriya Sahara" vide its edition dated
29.10.2011 and also reported the same to PS Jagatpuri.
7. Thus, it is alleged that the license of the defendant to reside in
the suit premises stood revoked on 29.10.2011. Upon revocation of
the license, the defendant/respondent and the plaintiff‟s son allegedly
shifted to a rented accommodation and handed over the possession of
the ground floor of the suit property to the plaintiff. However, on
02.11.2011, the defendant/respondent along with her brothers and a
constable from Traffic Police, Rohini allegedly forcibly entered the
suit property, took forcible possession of the ground floor by breaking
its locks and even stole some articles belonging to the
plaintiff/revisionist and his wife.
8. Consequently, the plaintiff/revisionist served the defendant/
respondent with a legal notice to vacate the ground floor of the suit
property, but the defendant did not accede. Consequently, the
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plaintiff/revisionist was earlier constrained to file a civil suit bearing
No. 76/2018 before learned JSCC-ASCJ-GJ, East District,
Karkardooma for permanent and mandatory injunction as well as
mesne profits against the defendant and also filed an application under
Order XII Rule 6 CPC r/w Order XV Rule 1 of the CPC in the said
civil suit.
9. The learned Civil Judge in CS No. 76/18 vide Order dated
14.09.2018 partly decreed and partly dismissed the suit of the
plaintiff/revisionist while observing that:-
"5. In my view, the relief of mandatory injunction and the
relief of mesne profits, sought by the plaintiff are ex-facie
not maintainable because in light of the pleading made in
paragraph 11 of the plaint that on 02.11.2011, the
Defendant No. I had forcibly entered into the suit
property and had taken forcible possession of the suit
property: the defendant no.1 cannot be accepted to be a
licensee of the plaintiff qua the suit property and because
once it stands established that instead of being a licensee
of the plaintiff qua the suit property, the defendant no.1 is
a trespasser qua the suit property, the appropriate
remedy for the plaintiff is to file a suit for possession and
recovery of mesne profits against the defendants."
10. Accordingly, the revisionist/plaintiff filed the present suit
bearing No. 730/2018 seeking possession, mandatory injunction, and
mesne profits against the respondent/respondent daughter in law on
the ground that the plaintiff being the owner has every right to
dispossess the defendant, being a trespasser, from the suit property. In
the meanwhile, the respondent/defendant had filed a Petition bearing
no. V-8/12 titled as "Gagandeep Kaur v. Saravjit Singh and Anr."
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before the Ld. MM, Mahila Court who granted interim relief to the
defendant/respondent under the Protection of Women from Domestic
Violence Act 2005 vide Order dated 17.01.2012 to the extent that the
plaintiff/revisionist was restrained from dispossessing the
defendant/respondent from the suit property.
11. In the present suit, the respondent/defendant filed her written
statement and the defence set up by her is as follows:-
a) The suit has not been valued properly, is barred by res judicata and
is liable to be dismissed in view of O2 R2 CPC and O7 R11 CPC;
b) She is in possession of the suit premises in compliance of the order
dated 27.01.2012 and 10.05.2013 passed by the Ld. MM, Mahila
Court in case No. V-8/12 titled as "Gagandeep Kaur v. Saravjit
Singh and Anr" ;
c) The revisionist/plaintiff is merely the attorney holder of the
erstwhile owner of the suit property i.e. Smt. Khushwant Kaur i.e.
wife of the plaintiff, and has no valid registered sale deed of the
suit property to prove his title over the said property.
d) The respondent/plaintiff has not come with clean hands as he has
nowhere mentioned in the plaint that Sh. Santosh Dixit had
purchased the suit property from the mother of the plaintiff before
selling it to the wife of the plaintiff.
e) The respondent/plaintiff disowned his son and the defendant to
harass her and throw her out of the suit premises.
f) The respondent/plaintiff and his son are in collusion to throw her
and her minor daughter out of the suit premises by malafidely
shifting her belongings to the rented accommodation without her
consent.
g) All averments of the plaint have been denied and prayer to dismiss
the suit with costs has been made.
12. Thereafter, the plaintiff/respondent filed an application under
Order XII Rule 6 CPC r/w Section 151 CPC for passing a decree in
the present suit on the basis of the following admissions claimed to be
made by the defendant/respondent vide her written statement: -
a) The relationship of father-in-law and daughter-in-law is admitted;
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b) The defendant/respondent has admitted that the suit property was
transferred in the name of the wife of the plaintiff/revisionist by
Sh. Santosh Dixit.
c) The defendant/respondent has admitted that the plaintiff/revisionist
disowned and disentitled the plaintiff from all his movable and
immovable assets by way of publication in daily newspaper,
namely "Rashtriya Sahara" vide its edition dated 29.10.2011.
13. The defendant/respondent in response to the aforesaid
application took the plea that she has not admitted the ownership of
the plaintiff over the suit property, and she has rather questioned it.
She claims that she is residing in the suit property under the strength
of the order dated 27.01.2012 passed by the Ld. MM, Mahila Court in
case No. V-8/12, and thus, cannot be evicted under Order XII Rule 6
CPC by the Ld. ADJ.
14. Based on the pleadings and oral arguments advanced by the
parties, the ld. Trial Court dismissed the application under Order XII
Rule 6 CPC of the revisionist/plaintiff vide impugned Order dated
10.10.2023.
GROUNDS OF APPEAL:
15. The impugned order has been assailed firstly on the ground that
the learned Trial Court did not appreciate the evidence brought on
record by the plaintiff/revisionist to prove his title over the suit
property, i.e. Registered GPA, Agreement to Sell, Will, Affidavit and
Receipt all dated 27.07.1998, and that the learned Trial Court has
wrongly disputed the legality of the said documents in ignorance of
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the decision of the Supreme Court in Suraj Lamp & Industries (P)
v. State of Haryana3.
16. Secondly, that the learned Trial Court ignored that the
respondent/defendant has not disputed the rights that the wife of the
plaintiff had in the suit property. Thirdly, that the learned Trial Court
failed to consider that the order of the learned MM, Mahila Court
dated 27.01.2012 is a protection only against dispossession of the
defendant without due process and cannot create a hurdle in passing
any order of possession in the present suit. Fourthly, that the ld. Trial
court failed to consider that the defendant/respondent in the written
statement has categorically admitted that the mother of the
plaintiff/revisionist duly transferred the property of which the suit
property is a part, to Sh. Santosh Dixit who then duly transferred the
suit property to the wife of the plaintiff/revisionist. Further, that the
defendant/respondent has also admitted that the plaintiff/ revisionist
has disowned his son and the defendant/ respondent vide publication
dated 29.10.2011, and that the son of the plaintiff was the one who
had left the suit premises and shifted to the rented accommodation.
Fifthly, that the averments in the written statement are sufficient to
establish a justification for the plaintiff/revisionist to seek the eviction
of the defendant/respondent and there is no need for the
plaintiff/revisionist to be put to proof. Lastly, it is contended that the
defendant/ respondent is actually residing at her mother‟s house along
with her minor daughter and is only illegally occupying the suit
premises to mentally harass the plaintiff/revisionist and his wife who
3 (2012) 1 SCC 656
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are senior citizens. To prove the same, the plaintiff/respondent has
placed on record copies of electricity bills raised on the "first floor" of
the suit property from October 2022 to November 2023 that show the
average monthly consumption of electricity on the first floor of the
suit property to be as low as 28W/month.
ANALYSIS & DECISION:
17. I have given my anxious consideration to the submissions
advanced by the learned counsels for the rival parties at the Bar and I
have also gone through the relevant record of the case. It would be
apposite to refer to Order XII Rule 6 of the CPC, which provides as
under:-
"ORDER XII-ADMISSION
6. Judgment on admissions-- (1) Where admissions of fact have
been made either in the pleading or otherwise, whether orally or in
writing, the Court may at any stage of the suit, either on the
application of any party or of its own motion and without waiting
for the determination of any other question between the parties,
make such order or give such judgment as it may think fit, having
regard to such admissions. (2) Whenever a judgment is pronounced
under sub-rule (1) a decree shall be drawn upon in accordance with
the judgment and the decree shall bear the date on which the
judgment was pronounced."
18. First things first, it is manifest that the expression „admission‟
has not been defined in the CPC and Section 17 of the Indian
Evidence Act, 1872 defines „admission‟ as a statement made in oral,
documentary or electronic form suggesting an inference to a fact in
issue or relevant fact. Thus, an „admission‟ is not to be construed only
as an explicit statement made by a party to a legal proceeding, either
oral, documentary or contained in electronic form, so as to be stating
that he or she admits this or that. Even when there is a denial to a fact
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in issue or to a relevant fact, what needs to be deciphered is what
inference is raised with regard to any fact in issue or relevant or the
lack of it, and it has to be distinguished from a clear admission and a
statement that would raise a strong inference as to admission of certain
state of affairs.
19. There is no gainsaying that the fundamental purpose of Order
XII Rule 6 of the CPC is to avoid unnecessary waiting by the plaintiff
for a part of the decree when there is a clear, unequivocal,
unambiguous and unconditional admission of the defendant in respect
of any claim. The object of the rule is to enable the party to obtain a
speedy judgment at least to the extent of the admission of the
defendant, to which the plaintiff is entitled in law. The drawing of an
inference as to whether there is an admission or not has to be formed
having regard to the facts and circumstances of each case and the
inference of admission for the purposes of invoking Order XII Rule 6
of the CPC should be such which does not involve any triable issue, or
based on any vexed and complicated question of either law or facts.
20. In the case of S.M. Arif v. Virender Kumar Bajaj4 it was held
that Order XII Rule 6 of the CPC is an enabling provision and it is a
discretionary relief and the real issue for determination should be as to
whether the objections or the defence taken by the defendant go to the
root of the matter and whether the objections raised by the defendant
are such that are essential to be dealt by way of a full-fledged trial. It
was held as under:-
(2015) 9 SCC 287
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"8. The words in Order 12 Rule 6 CPC "may" and "make such
order ..." show that the power under Order 12 Rule 6 CPC is
discretionary and cannot be claimed as a matter of right. Judgment
on admission is not a matter of right and rather is a matter of
discretion of the court. Where the defendants have raised
objections which go to the root of the case, it would not be
appropriate to exercise the discretion under Order 12 Rule 6 CPC.
The said rule is an enabling provision which confers discretion on
the court in delivering a quick judgment on admission and to the
extent of the claim admitted by one of the parties of his opponent's
claim."
21. On the said understanding of the scope and ambit of Order XII
Rule 6 of the CPC, the issue that has been raised by the learned
counsel for the respondent is that a revision does not lie against an
order rejecting an application under Order XII Rule 6 of the CPC.
The said plea merits outright rejection as it is only when an
application is allowed under Order XII Rule 6 of the CPC that
culminates into a "decree" in which case only an appeal shall lie but
not conversely. There is no gainsaying that that revisional power of
this Court under Section 115 of the CPC can be exercised where the
District Court has failed to exercise its jurisdiction or to have acted in
the exercise of jurisdiction illegally or with material irregularity.
22. In view of the aforesaid proposition of law, coming to the
instant matter, it would be apposite to note the observations and
findings of the learned Trial Court as contained in Paragraph (9) and
(10) of the impugned Order, which read as under:
"9. The plaintiff filed the instant suit on the premise that defendant
being a trespasser is liable to be ousted from the suit property as
held by the Ld. Civil Judge in CS No. 76/18 vide order dated
14.09.2018. However, upon perusal of the said order, it is observed
that Ld. Civil Court in the said order has nowhere gave any finding
to the effect that defendant is a trespasser, rather referred to the
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averments of the pleadings of the plaintiff while declining the relief
of mandatory injunction to the plaintiff. Thus, there is no finding of
defendant being trespasser in the suit property in the said order.
Further, the applicant/plaintiff has claimed that defendant has
admitted the ownership of plaintiff over the suit property.
However, upon perusal of the written statement filed by the
defendant, it is observed that there is no categorical, unambiguous
and unequivocal admission on the part of the defendant. Rather. In
para 1 of reply on merits, the defendant has challenged the
ownership of plaintiff over the suit property stating that the
plaintiff is merely an attorney holder of Smt. Khushwant Kaur
and thus, an attorney cannot file a suit in his individual
capacity. Further, it was categorically denied that the defendant is
illegally and unlawfully occupying suit property, rather, the
defendant claimed possession over the suit property on the basis of
compliance of order passed by Ld. Mahila court dated 27.01.2012
read with Order 10.05.2013 wherein the defend ant was allowed to
reside in the suit premises. Further in para 6, though there is
admission that plaintiff disowned the defendant as well as his son
from the movable and immovable properties but it was qualified
with the fact that it was only for harassment of the defendant
without having any reason or cause. Even otherwise, the pleadings
has to be read in toto and no admissions can be derived on piece
meals. Therefore, upon holistic reading of the written statement of
the defendant, it is observed that it lacks unambiguous and
unequivocal admission as to the right of the plaintiff to seek
possession of the suit property on the basis of ownership. Rather,
defendant has contested every averment of the plaintiff with
tooth and nail. Further since plaintiff himself claims ownership of
the suit property on the basis of certain set of documents such as
agreement to sell, GPA, Will etc. which per se itself does not
confer any title over any immovable property as held in "Suraj
Lamp & Industries (P) Vs. State of Haryana & Anr. SLP (C) No.
13917 of 2009" ,and therefore, no judicial notice of conferment
of ownership on the basis of these documents can be taken.
Thus, it requires evidence to prove their due execution in order to
confer any right over the suit property which cannot be determined
under Order XII Rule 6 CPC, more so, when defendant has
categorically challenged the ownership of plaintiff over the suit
property
10. In view of the above discussions, the application filed by the
plaintiff u/o XII Rule 6 CPC is dismissed since plaintiff failed to
prove any categorical admission on the part of the defendant as far
as relief of possession over the suit property is concerned.
Application is disposed off accordingly."
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23. Unhesitatingly, the learned Trial Court committed material
irregularity in the exercise of its jurisdiction as it overlooked the
aspect of the relationship of the parties being father-in-law and
daughter-in-law and the fact that the sale documents in favour of the
petitioner/plaintiff with regard to the subject property were evidently
executed on 27.07.1998 whereas the respondent/daughter-in-law had
come to reside in the subject property upon marrying the son of the
petitioner/ plaintiff on 14.11.2010, which would be in the nature of a
„shared house hold‟5 as defined under Section 2(s) of the Protection of
Women from Domestic Violence Act, 2005. It is pertinent to mention
here that the respondent/daughter-in-law in her written statement vide
paragraphs (1) and (2) while giving reply on merits has averred as
under:-
"1. That the contents of the para No. 1 of the application are partly
admitted and partly denied. It is specifically denied that the
plaintiff is the absolute owner of the property bearing H.No. 11/8,
Gali No. 1 & 2, Govindpura, Delhi. It is important submit here that
the plaintiff merely the attorney holder of Smt. Khushwant Kaur
and it is the fact that the attorney cannot file any suit in individual
capacity as he is having| no titled deed in his favour as only the
rights were transferred by Smt. Khuswant Kaur in his favour in the
year 199. and it is also the fact that the property in question is part
of the plot measuring 150 sq. which was in the name of the mother
of the plaintiff but the same was transferred in the name of one
person namely Dr. Dixit, who was familiar with the family of the
plaintiff, because the mother of the plaintiff filed a suit against her
landlord and only to show the fact that she is not having any
5 'shared household‟ means a household where the person aggrieved lives or at any stage has lived
in a domestic relationship either singly or along with the respondent and includes such a household
whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either the aggrieved person or the respondent or
both jointly or singly have any right, title, interest or equity and includes such a household which
may belong to the joint family of which the respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or interest in the shared household;
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residential premises in her name the premises was transferred in
the premises name of Dr. Lixit who later on executed the titled
deed in favour of the wife of the plaintiff and two of his brothers a
of 1/3rd equal share i.e. 50 sq. yds. It is specifically denied that the
defendant is illegally and unlawfully occupying the ground floor of
the property. It is the fact that defendant is in possession of the
premises in compliance of the order passed by Ms. Vandana Jain,
M.M. dated 27.01.2012 in the matter titled as
Gagandeep Kaur Vs. Satvir Singh & Anr. But after that too she
was not allowed to put allowed to put her articles in the premises
and then the defendant had to move an another application, which
was decided by the order dated 10.05.13 as per which the
defendant was allowed to put her articles inside the premises in
question. It is also the fact that the plaintiff also challenged the
order dated 30.05.13 passed by the Hon'ble Distt. & Session Judge,
before the Hon'ble High Court and filed the criminal revision. No.
403/13 titled as Khuswant Kaur & Anr. Vs. Gagandeep, which was
also dismissed by the Hon'ble court on 15.10.14, and
defendant was allowed to reside in the premises in question but
conceal the fact that the plaintiff filed the present suit.
2. That the contents of the para: NO. 2 of the suit are totally partly
admitted and partly denied. It is admitted that the property was got
transferred in the name of Smt. Khushwant Kaur from Dr. Santosh
Dixit as alleged by the defendant the reply to the previous para, but
it is nowhere mentioned by the plaintiff that prior to Dr. Santosh
Dixit, the mother of the plaintiff was the owner of the premises. It
is also specifically denied that the plaintiff had bought the suit
property from his wife vide the documents as alleged dated
27.07.1998 but it is the fact that only the rights were transferred by
his wife in his favour, not the title as no registered sale deed is
there."
24. Exfacie, the aforesaid averments made by the
respondent/daughter- in-law cannot be sustained in law. Of course,
there is denial to the averment made by the petitioner/plaintiff inter
alia challenging his ownership to the property in question but that
denial is only an eye-wash, sham and illusionary. The defence of the
respondent/daughter-in-law to the suit, is a case of clever drafting and
there is a hidden but omnipotent admission that the subject property
belonged to the petitioner/plaintiff inasmuch as it was initially bought
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by her mother-in-law from Dr. Santosh Dixit and later the sale
documents have been executed in favour of the petitioner-plaintiff/
father-in-law. The reliance by the learned Trial Court on the case of
Suraj Lamp (supra) is absolutely misplaced since the proposition of
law is that a legal transfer of an immovable property could only be
effected by a registered document and no recognition can be accorded
to GPA sales etc. However, the decision is prospective in its
application. It would be apposite to refer to the operative directions in
the case of Suraj Lamps which goes as under:
26. We have merely drawn attention to and reiterated the well-
settled legal position that SA/GPA/will transactions are not
"transfers" or "sales" and that such transactions cannot be treated
as completed transfers or conveyances. They can continue to be
treated as existing agreements of sale. Nothing prevents the
affected parties from getting registered deeds of conveyance to
complete their title. The said "SA/GPA/will transactions" may also
be used to obtain specific performance or to defend possession
under Section 53-A of the TP Act. If they are entered before this
day, they may be relied upon to apply for regularisation of
allotments/leases by development authorities. We make it clear that
if the documents relating to "SA/GPA/will transactions" have been
accepted/acted upon by DDA or other developmental authorities or
by the municipal or Revenue Authorities to effect mutation, they
need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in
any way affect the validity of sale agreements and powers of
attorney executed in genuine transactions. For example, a person
may give a power of attorney to his spouse, son, daughter, brother,
sister or a relative to manage his affairs or to execute a deed of
conveyance. A person may enter into a development agreement
with a land developer or builder for developing the land either by
forming plots or by constructing apartment buildings and in that
behalf execute an agreement of sale and grant a power of attorney
empowering the developer to execute agreements of sale or
conveyances in regard to individual plots of land or undivided
shares in the land relating to apartments in favour of prospective
purchasers. In several States, the execution of such development
agreements and powers of attorney are already regulated by law
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and subjected to specific stamp duty. Our observations regarding
"SA/GPA/will transactions" are not intended to apply to such bona
fide/genuine transactions."
25. The long and short of the aforesaid discussion is that the learned
Trial Court committed material irregularity in exercise of its
jurisdiction as it failed to fully appreciate that the
respondent/daughter-in-law is miserably failing to bring forth any
triable issue as regards the claim of ownership of the subject property
by the petitioner/plaintiff. She is failing miserably to show that her
objections to the claim of ownership by the petitioner/plaintiff are of
such nature or substance that are essential to be dealt by way of a full-
fledged trial. It needs to be appreciated that the suit of the plaintiff is
on two aspects: firstly, claiming possession by virtue of being an
owner, and secondly, a claim for mesne profits or damages for
wrongful occupation by the respondent on determination of his license
or for that matter her status being that of a trespasser and being in
unauthorised possession of the subject property. Insofar as the first
issue is concerned, there could be no iota of doubt that the
petitioner/plaintiff is the owner of the subject property by all legal and
practical angles. A daughter-in-law who has come to reside in a
shared household after her marriage with the son of her parents-in-
law can never be allowed to question the right, title or interest of her
parents-in-law in the subject property unless and until it is shown that
there is some equal and effective legal right to the property in
question. It is not the case of the respondent that her husband is
having a right, title or interest in the subject property by virtue of it
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being ancestral, or being derived from the sources or funds out of the
sale or disposition of an ancestral property.
26. In order to appreciate the scope and ambit of Order XXII Rule 6
CPC, it would be apposite to refer to few case laws on the subject. In
the case of Charanjit Lal Mehra v. Kamal Saroj Mahajan6, a lease
had been created by the landlord in favour of four brothers stipulating
that it had been executed in their favour jointly and compositely for
monthly rent of Rs. 2500/- per month, which eventually went above
Rs. 3500/- per month so as to bring it out of the purview of the Delhi
Rent Control Act, 1958. On institution of a suit for eviction and
recovery of arrears of rent besides damages and mesne profits by the
landlord, the four brothers/tenants acknowledged that they were
tenants but each claimed splitting up of the tenancy to the extent of
1/4th towards its rental and it is in the said scenario that the landlord
moved an application under Order XII Rule 6 CPC wherein it was
held as under:
" In fact, Order 12 Rule 6 CPC is enacted for the purpose of and in
order to expedite the trials if there is any admission on behalf of the
defendants or an admission can be inferred from the facts and
circumstances of the case without any dispute; then, in such a case
in order to expedite and dispose of the matter such admission can
be acted upon."
27. Ultimately, holding that the relationship of landlord and tenant
between the parties was admitted and the rent of more than Rs. 3500/-
was joint and composite one, the application under Order XII Rule 6
of the CPC was allowed and a decree for eviction was passed. In
another case decided by this Court in Sonny Sarna v. Urmil
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Wadhawan7, a suit was filed for recovery of possession against the
defendant for unauthorized use and occupation, and in the context of
deciding and upholding an application under Order XII Rule 6 of the
CPC it was held that it is the duty of the Court to discard sham
defences and there is no necessity of wasting precious judicial time to
put issues raised to trial.
28. In another case Karan Madaan v. Nageshwar Pandey8, the
three plaintiffs being brothers and their mother instituted a suit for
specific performance contending that the defendant was the exclusive
owner of the built-up property in the suit, which was bought by way of
registered sale deed dated 01.11.2011 for a valuable consideration,
and although each plaintiff had different shares towards contribution
of the sale deed, their grievance was that despite the covenant in the
sale deed that the vacant and physical possession of the property had
been handed over to the vendees by the vendor, the said promise
remained unfulfilled. The defendant in the written statement along
with the counter claim acknowledged that he had executed the sale
deed in favour of the plaintiffs but only in order to secure a loan
granted to him @ 2% per month and it was also claimed that
possession had not been claimed by the plaintiff till 28.04.2012
although the sale deed had been executed and registered on
02.12.2011. Since the payment of the sale consideration was prima
facie substantiated by payment of cheques, while holding that the
defence raised by the defendant was barred by Section 91 and 92 of
6 (2005) 11 SCC 279
7 2013 SCC OnLine Del 4681
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the Indian Evidence Act, 1872, the application of the plaintiffs under
Order XII Rule 6 of the CPC was allowed relying on decision in the
case of Parivar Seva Sansthan v. Dr. (Mrs.) Veeana Kalra, 2000
(54) DRJ (DB). It was observed as under:-
"70. There is no purpose of dragging the matter further into trial so
far as the relief of possession is concerned, since the title of the
plaintiffs in respect of the suit property stands established, and the
only consequence thereof, in law, can be that the suit of the
plaintiff for possession has to succeed.
71. The defendant has failed to establish any right or title in the suit
property. At the highest, the defendant may have occupied the suit
property for some duration after the execution of the sale deed in
favour of the plaintiffs as a licensee. The said license clearly stands
terminated, if not earlier, upon receipt of summons in the suit, inter
alia, for possession. (See judgment in Nopany Investments (P) Ltd.
v. Santokh Singh (HUF), (2008) 2 SCC 728)."
29. At this juncture, it would also be apposite to refer to the
observations in the case of Parivar Seva Sansthan (supra), wherein it
was held as under:-
"20. To conclude, in the instant case the execution of the lease
deed has been unequivocally admitted by the appellant. Once the
execution of the document has been admitted, Sections 91 and 92
of the Evidence Act, come into play. Section 91 lays down that
when the terms of a contract or of any other disposition of property
have been reduced to the form of a document, no evidence shall be
given in proof of the terms of such contract or other disposition of
property, except the document itself. Section 92 further lays down
that when the terms of any such contract or other disposition of
property have been proved according to the last Section, no
evidence of any oral agreement or statement shall be admitted as
between the parties to any such instrument for the purpose of
contradicting, varying, adding to or subtracting therefrom. Thus,
quite obviously, the pleas raised by the appellant against the
contents of the lease deed are barred by Sections 91 and 92 of the
Evidence Act and appear to have been made only for the purpose
of delaying the trial of the case. Such pleas as ruled by this Court in
8 2014 SCC OnLine Del 1277
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the Parivar Seva Sansthan case (supra) can be ignored by the Court
while adjudicating an application under Order XII Rule 6 CPC if
otherwise the Court finds, either on an application of any party or
on its own motion, that the admissions made in the pleadings or
otherwise taken as a whole justify the passing of a decree thereon.
In fact, the Court in the said case has gone so far as to say that even
a constructive admission firmly made can be made the basis of the
decree. All that the Court is required to do is to satisfy itself that
the question raised in the suit can be determined without
evidence..... ..... ..... .....".
30. The decision in the case of Rajeev Tandon v. Rashmi
Tandon9 by this Court is one where the facts involved were somewhat
similar as in the instant matter. The plaintiff no. 1 & 2 being husband
and wife respectively were the owners of the subject property and the
defendant happened to be the sister of the plaintiff no. 1. The
defendant got married on 06.02.1998 and she went to reside in her
matrimonial home in Mumbai. However, after the death of their father
on 12.12.1998, the defendant-sister came back to Delhi on account of
marital discord with the husband, got involved in various litigations
against her husband, and she started residing in one room of the suit
property. However, as alleged, the defendant started threatening the
plaintiffs in order to seek a share in the properties and business left by
her father including the subject property, hence the plaintiffs sought
her eviction from the suit property and possession by claiming that the
defendant-sister was allowed to reside in one room accommodation on
gratuitous basis. Although the defendant claimed that she had filed a
separate suit seeking partition of the properties left behind by her
father including the property in question, an application under Order
9 2019 SCC OnLine Del 7336
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XII Rule 6 of the CPC was filed by the plaintiffs. This Court after
going through the entire pleadings found that although there was a
denial by the defendant-sister that the plaintiff-brother was not having
any title to the premises, there was no escape from the conclusion that
the property in question had been purchased by the plaintiffs from
self-acquired sources. The case of the defendant-sister that funds had
been generated from the sale of the joint family properties was also
considered in the light of decision in Amit Johri v. Deepak Johri,
2014 SCC OnLine Del 822, wherein it was held as under:-
"13. It may be true that property under Hindu Law can be
classified under two heads: - (i) coparcenary property; and (ii)
separate property. Coparcenary property is again divisible into (i)
ancestral property and (ii) joint family property which is not
ancestral. This latter kind of property consists of property acquired
with the aid of ancestral property and property acquired by the
individual coparcener without such aid but treated by them as
property of the whole family.
14. It may also be true that the three notions : (i) joint property,
(ii) joint family property, and (iii) joint ancestral family property
are not the same. In all the three things there is no doubt a common
subject, property, but this is qualified in three different ways. The
joint property of the English law is property held by two or more
person jointly, it characteristic is survivor-ship. Analogies drawn
from it to joint family property are false or likely to be false for
various reasons. The essential qualification of the second class
mentioned above is not joints merely, but a good deal more. Two
complete strangers may be joint tenants according to English law;
but in no conceivable circumstances except by adoption could they
constitute a joint Hindu family, or in that capacity, hold property.
In the third case, property is qualified in a two-fold manner, that it
must be a joint family property and it must also be ancestral. It is
obvious that there must have been a nucleus of joint family
property before an ancestral joint family property can come into
existence, because the word ancestral connotes descent and hence
preexistence. But because it is true that there can be no joint
ancestral family property without pre-existing nucleus of joint
family property, it is not correct to say that these cannot be joint
family property without a preexisting nucleus, for, that would be
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identifying joint family property with ancestral joint family
property. Where there is ancestral joint family property, every
members of the family acquires in it a right by birth which cannot
be defeated by individual alienation or disposition of any kind
except under certain peculiar circumstances. This is equally true of
joint family property. Where a sufficient nucleus in the possession
of the members joint family has come to them from a paternal
ancestor, the presumption is that the whole property is ancestral
and any members alleging that it is not, will have to prove his self-
acquisition. Where property is admitted or proved to have been
joint family property, it is subject to exactly the same legal
incidents as the ancestral joint family property, but differed
radically in original and essential characteristics from the joint
family is the tie of sapindaship without which it is impossible to
have a joint Hindu family, which such a relationship is unnecessary
in the case of a joint tenancy in English laws.
15. It may further be true that coparcenary property means and
includes : (1) ancestral property, (2) acquisitions made by the
coparceners with the help of ancestral property, (3) joint
acquisition of the coparceners even without such help provided
there was no proof of intention on their part that the property
should not be treated as joint family property, and (4) separate
property of the coparceners thrown inot the common stock.
16. But, there has to be a properly constituted pleading before
principles of law can be attracted. It is trite that depending upon a
fact stated a principle of law would be attracted. Issues of law and
fact have to be settled with reference to the pleadings of the
parties."
31. Eventually upon finding that the defendant had failed to make
any averments as to how and in what manner the joint properties had
been sold and the funds were acquired, and in view of the registered
sale deed in favour of the plaintiffs with regard to property in
question, this Court held as under:
"35. Clearly, vague, unsubstantiated and evasive pleas have been
held to be sufficient ground to hold that there are admissions in the
pleadings and a decree is liable to be passed under Order 12 Rule 6
CPC. As noted above, the pleas taken by the defendant in the
written statement are vague, inconsistent and do not in any manner
whatsoever show that any worthwhile defence is raised or any right
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exists in favour of the defendant to enable her to continue to
occupy the suit property.
36. In my opinion, the defence taken by the defendant is vague and
unsubstantiated and a mere attempt to prolong the present
litigation. Accordingly, no defence is available to the defendant.
The present application under Order 6 Rule 12 CPC is liable to be
allowed."
32. Attempting to shorten the academic discussion, reference can
lastly be invited to the decision of this court in the case of Madalsa
Sood v. Maunicka Makkar10, which was a suit was filed by the
father-in-law against the daughter-in-law seeking possession of the
accommodation in the suit property after the son of the husband of the
defendant/daughter-in-law had expired. An application under Order
XII Rule 6 of the CPC was filed and although defendant/daughter-in-
law countenanced that her rights in the suit premises are protected by
virtue of interim orders passed by the learned MM in the proceedings
under Protection of Women from Domestic Violence Act, 2005,
upholding the application under Order XII Rule 6 CPC, it was held
that there was a desperate attempt by the defendant to question the
exclusive title of the father-in-law to the suit premises and the
defence raised was implausible and in the nature of total moonshine.
33. The sum and substance of the aforesaid discussion is that the
respondent/daughter-in-law has no legal right to deny the right or
interest of the petitioner/father-in-law in the subject property and her
defence is completely sham, illusionary and untenable in law.
Unhesitatingly, there is an inevitable inference of an admission to the
effect that she has no other legal right in the subject property except to
10 CS(OS) 92/2021 decided on 10.12.2021
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be dispossessed as per due process of law. There is no reason for the
petitioner/plaintiff to wait any longer and he is entitled to seek speedy
recovery of possession of his own property in order to live peacefully
in his old life. There is no gainsaying that whether she came to reside
in the property as a licensee or allegedly trespassed into the property
hardly affords any defence to the respondent/daughter-in-law because
in either case she would be required to hand over the accommodation
in the subject property in the favour of the petitioner/plaintiff.
34. All said and done, the only catch is that as regards the claim of
the petitioner/plaintiff seeking mesne profits/ damages and the defence
espoused on such relief by the respondent/ defendant, these raise
triable issues since the quantum of compensation or damages or claim
towards user charges would depend upon which period of occupation
could be held to be lawful by virtue of the directions passed by the
learned MM under Protection of Women from Domestic Violence
Act, 2005. It depends upon the evidence to be led whether or not she
happens to be a licensee but in unauthorized occupation after
termination of the license, or as to whether she is a trespasser. Our
justice system is clogged with claims and counter-claims which are on
the face of it frivolous, vexatious and untenable in law and yet we
keep on adding to the pendency by allowing parties to go to a full-
fledged trial, which comes at a great public expense, costs, time and
efforts. The jurisdiction of the Court should be invoked and be
exercised in a manner which deftly deals with such kind of
unscrupulous, vexatious and ill-intentioned litigations so that we can
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devote our time and efforts to other matters of greater concern to the
public at large.
35. In view of the foregoing discussion, the impugned order dated
10.10.2023 cannot be sustained in law in its entirety and is hereby set
aside. The application of the petitioner/ plaintiff under Order XII Rule
6 of the CPC is partly allowed to the effect that a decree of possession
is passed in favour of the petitioner/plaintiff and against the defendant
or any other person claiming through the defendant as successor or
otherwise in respect of the portion on the ground floor in the suit
property bearing H.No. 11/8, Gali No. 1 &2, Old Govindpura
Extension, New Delhi-110051, as shown in the site plan. Accordingly,
the respondent/plaintiff is directed to hand over its peaceful and
vacant possession to the petitioner/plaintiff forthwith.
36. The learned Trial Court shall however proceed with the trial for
determination of issues as regards the claim for mesne profits/
damages/user charges as per the law. Copy of this order be sent to the
learned Trial Court for information and necessary compliance.
37. The present revision petition along with pending application
stands disposed of accordingly.
DHARMESH SHARMA, J.
APRIL 29, 2024
Sadiq
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