Roop Singh v. Roshan Lal & Ors.

1. This second appeal is filed by the appellant/plaintiff against the concurrent judgments of the courts below; of the trial court dated 18.7.2011 and the first appellate court dated 3.5.2012; by which the suit filed by the appellant/plaintiff claiming the reliefs of declaration, injunction etc. was dismissed. Originally in the suit four reliefs were claimed, but the fourth relief claimed of partition was withdrawn as per order the dated 5.9.2006 as 2014:DHC:2205 recorded by the trial court. The other three reliefs which will therefore remain are as under: “i) A decree for declaration be passed in favour of the plaintiff and against the defendants declaring the plaintiff is the co-sharer in the HUF property and sole and absolute owner of the property no. 58 Pana Vill. & PO. Mundka Delhi and the plor measuring 68 x 24 ft. alongwith the passage/corridor at 8 ft. at khasra no. 849/1/1, 849/2/1 Village Mundka Delhi.

(ii) Further directing defendants to remove themselves from the portion of the corridor/gali 8 ft. of the property to enable the plaintiff for smooth passage entrance to his residence.

(iii) Grant a decree of permanent injunction restraining the defendants or any other persons restraining the defendants or any other persons acting through or on their behalf there servants, agents, representatives of any one acting under or through them in any manner from interfering in the peaceful possession of the residential house situated on plot no. 58 Pana Samdyan village & PO Mundka Delhi and plot measuring 68 x 24 ft. falls in Lal Dora alongwith the passage/corridor at 8 ft. at khasra no. 849/1/1, 849/2/1 Vilage Mundka Delhi and also restraining the defendants from creating any theird party interest in the agriculture land measuring 2 bighas and 2.[5] biswas at khasra no.”

2. The disputes in the present case pertain to a residential house situated on a plot of 85 sq. yards situated in a plot measuring 900 sq. yards. Appellant/plaintiff claims to be in possession of the plot of 85 sq. yards or an area of 68x24 ft. alongwith 8 feet corridor falling in the Lal Dora of the village which he had built upto the first floor bearing no. 58, Plot no. 37, Mundka, Delhi and situated in K.No.849/1/1 and 849/2/1, village Mundka, Delhi.

3. The essential and main reliance which was placed upon by the appellant/plaintiff to claim rights in the suit property was the family settlement entered into between the parties on 14.4.2002. This settlement is in Hindi and in the judgment of the first appellate court English translation of the same is given as under: “This compromise has ben arrived between Roop Singh S/o Roshan Lal, Surinder Singh S/o Sh. Roshan Lal, Joginder Singh S/o Sh. Roshan Lal R/o Mundka, the three brothers out of their own free Will and it has been decided that all the three brothers are bound by this Agreement and he himself shall be liable for the same. The compromises is as follows:

(i) Sh. Roop Singh has agreed to give a 6 iron garders of 9

(ii) Residential House constructed inside the plot on eastern direction situated at last in the plot which is 24 ft. in width from east to west direction.

(iii) Sh. Surinder Singh shall get the middle portion of the land, which is on the Western side aprox 48 fts. Wide as his share.

(iv) Sh. Joginder Singh shall get the western side which is approx. 50 ft. wide.

(v) The width of the gali (corridor) on the north south side adjacent to the wall of the Sher Singh is approx 8 ft. (sd/- Roshan Lal) (sd/- Surinder Singh) (sd/- Zile Singh) (sd/- Joginder) (sd/- Nafe Singh) and (sd/- Roop Singh).”

4. I have read the Hindi/vernacular document and found that the English translation is not accurate because the Hindi/vernacular document shows that actually by virtue of this document appellant/plaintiff gets ownership of the residential portion which has been constructed by him, but this aspect does not appear in the English translation. However, I note that none of the party disputes that if the family settlement dated 14.4.2002, Ex. PW-1/4 is taken as correct this document gives the right which is claimed by the appellant/plaintiff in the suit property. In the typed English translation actually para no.

(ii) should read “Roop Singh has the right on the residential house constructed inside the plot in the east direction at the back which is 24 ft. wide from east to west”.

5. It is relevant to note that this document Ex. PW-1/4 is signed by the father Roshan Lal and also by all. The three sons being the plaintiff Roop Singh and the other two sons Sh. Surinder Singh and Sh. Joginder Singh defendant nos. 2 & 3 respectively. The only challenge by the defendants/respondents to this document is that this document is not being proved and exhibited as required by law.

6. The following substantial question of law is framed for the disposal of this second appeal:- “Whether the court below committed gross illegality and perversity in holding that the family settlement dated 14.4.2002 Ex. PW-1/4 is not proved in spite of the fact that there was no objection to exhibition of this document at the time of exhibition of this document, and therefore, no objection can be subsequently raised to the exhibition of this document in view of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Anr. AIR 2003 SC 4548.”

7. The aforesaid question of law needs to be answered in favour of the appellant/plaintiff for the reason that it is not disputed that the family settlement Ex. PW-1/4 does bear the signatures of all the parties to the present suit i.e three sons and the father. It is also not disputed that as per this family settlement each of the three sons of Sh. Roshan Lal get rights in the suit property and the plaintiff would get an area measuring 68 x 24 ft. along with passage/corridor 8 ft. It is an undisputed fact emerging on record that there was no objection to the exhibition of the family settlement, and therefore, the family settlement stands proved in view of ratio of the judgment of the Supreme Court in the case R.V.E. Venkatachala Gounder (supra) which holds that once the document stands exhibited without any objection (and the document is admittedly signed by all the parties) rights under the said document have to flow and accordingly appellant/plaintiff will be entitled to the reliefs claimed in the suit with respect to the subject plot admeasuring 68 x 24 ft. alongwith a passage/corridor of 8 ft. in the property stated in para 2 of this judgment and in the site plan Ex.PW1/5.