Harish & Ors. v. Sarla Devi & Ors.

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. C.M. No.8865/2014 (condonation of delay)

2. For the reasons stated in the application, delay of 56 days in refiling the appeal is condoned. C.M. stands disposed of. 2014:DHC:2677 + RSA No.130/2014 and C.M. No.8863/2014 (stay)

1. This second appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the concurrent judgments of the courts below; of the trial court dated 6.1.2010 and the first appellate court dated 19.11.2013; by which the suit filed by the respondents/plaintiffs for possession has been decreed. The suit for possession has been decreed with respect to the suit land/suit property being 75 sq yds of land situated in plot no.119, falling in khasra nos.509, 510 and 511 of village Chaukri, Mubarkabad, Delhi. Respondents/plaintiffs were also held entitled to damages of Rs.2,800/- from the appellants (legal heirs of the original defendant no.1 Sh. Chander Bhan).

2. Three issues were raised before the courts below and are also the issues raised before this Court on behalf of the appellants. First issue urged is that since the suit land had been acquired by the Government under the Land Acquisition Act, 1894, the respondents/plaintiffs did not remain the owners and consequently the suit for possession was not maintainable in the absence of Union of India being added as a party. The second issue which has been argued is that defendant no.2 died during the pendency of the suit but since no legal heirs of the defendant no.2 were brought on record, the suit hence abates as a whole. The third issue which is urged is that as there is no specific demarcation of the suit plot and consequently the suit for possession should not have been decreed.

3. So far as the first aspect is concerned, it is not and could not be disputed that the Union of India becomes owner of the acquired land only if possession is taken under Section 16 of the Land Acquisition Act, 1894. In Delhi in many cases after the acquisition, the Government did not acquire (taken possession of) the land because those lands were found to be a part of illegally built up colonies. In the present case, the courts below note that no evidence has been led on behalf of the appellant/defendant no.1 of the Government having taken possession of the suit property, and therefore, the first argument raised on behalf of the appellant is misconceived and accordingly rejected because Union of India is not owner of the suit property.

4. So far as the second aspect is concerned that the suit should abate as a whole because defendant no.2 died during the pendency of the proceedings and his legal heirs were not brought on record, this argument is without merit because the defendant no.2 was only a proforma party and no relief was claimed against him. Defendant no.2 was added as a party because the defendant no.1/appellant claimed title through the defendant no.2. Since no relief was claimed against the defendant no.2 and the cause of action against the appellants being independent, the suit was entitled to be decreed for possession. This aspect has been rightly dealt with by the trial court at pages 30 and 31 of its judgment and which observations read as under:- “During final arguments, counsel for defendant no.1 asserted that since suit of plaintiffs had abated against defendant no.2, after his death, hence, plaintiffs had no right to claim any relief from defendant no.1 & suit shall abate against defendant no.1 also. He relied upon judgment of hon’ble Supreme Court in case titled BABU SUKHRAM SINGH VS.

RAM DULAR SINGH & ORS AIR 1973 SC 204, in which it was held that where plaintiffs have raised a joint claim against all the defendants, death of some of the defendants, shall result in abatement of appeal of plaintiff against all the defendants, due to failure of plaintiff to implead LRs of deceased defendants. But the judgment of hon’ble Supreme Court is not applicable to present case, since plaintiff has not sought joint relief from both the defendants. Plaintiff claimed no relief from defendant no.2, hence, abatement of his suit against defendant no.2 does not have any effect upon his claim against defendant no.1. Moreover, defendant no.2 had not even filed Written Statement or contested his case even during his life time. Hence, it mounted to admission of pleadings by defendant no.2. Plaintiffs have claimed all the reliefs only from defendant no.1 since defendant no.1 was in actual physical possession of suit land at the date of filing the present suit.”

5. I completely agree with the aforesaid conclusion of the trial court and which has been upheld by the first appellate court inasmuch as on death of the proforma party against whom no relief is claimed, suit cannot be abated as against other defendant(s).

6. The third argument urged on behalf of the appellants of lack of demarcation is once again neither here nor there because appellants are indubitably in possession of the land which has been proved to be in the ownership of the respondents/plaintiffs. The dispute is with respect to 75 sq yds out of a larger plot no.119 and which has been demarcated in terms of the plaint as per the site plan filed. There is therefore no doubt as to the identity of the plot with respect to which possession has been decreed in favour of the respondents/plaintiffs.

7. In view of the above, no substantial question of law arises under Section 100 CPC for this appeal to be entertained. Appeal is therefore dismissed, leaving the parties to bear their own costs. MAY 20, 2014 VALMIKI J. MEHTA, J. Ne