Prem Sarup v. Savitri Devi & Ors.

1. This second appeal under Section 100 CPC is filed against the concurrent judgments of the courts below; of the trial court dated 27.7.2010 and the first appellate court dated 20.7.2013; by which the suit of the respondents/plaintiffs for possession has been decreed with respect to the area shown in red in site plan Ex. PW-1/3 forming part of the property bearing no. XVI/3516, Gali no. 6, Ragarpura, Karol Bagh, New Delhi. Both the courts below have decreed the suit on the basis of two conclusions. The first conclusion is that as per the final decree of partition dated 22.3.1971 in 2014:DHC:1323 the partition suit between all the members of the family including present plaintiffs/respondents and the appellant/defendant (in Suit No. 492/70, original Suit No. 405/69) the portion for which possession was claimed by the respondents/plaintiffs admittedly fell to her share. The second conclusion given by the courts below is that respondents/plaintiffs had received possession of this portion and this was a conclusion which is derived inter alia on account of a sale deed dated 30.6.1995, Ex. PW-2/1, executed by other co-owners and who are parties to the partition decree whereby a specific portion of the property which fell to them on partition was sold to third party- buyers. This aspect of separate possession of having been taken by the parties to the partition suit and the final decree of partition dated 22.3.1971 also became clear from the fact that appellant/defendant himself filed the house tax receipts Exs. DW-1/3 and DW-1/4 which only pertain to his part portion of the property i. e 50 square yards, thus clearly showing that partition had been effected between the parties in terms of and as a follow-up of the final decree of partition dated 22.3.1971.

2. Before me counsel for the appellant urged the following aspects:-

(i) That there was a family settlement between the parties whereby the respondents/plaintiffs accepted the appellant/defendant as the owner of the suit premises and thus the suit for possession ought to be dismissed.

(ii) The final decree for partition dated 22.3.1971 was not engrossed on stamp papers, and therefore, respondents/plaintiffs cannot claim finality of the final partition decree dated 22.3.1971 and hence the respondents/plaintiffs cannot be given the relief of possession as prayed for in the suit and which would amount to execution of the partition decree which has not been stamped.

(iii) Respondents/plaintiffs failed to prove that she ever came in possession of the suit property pursuant to the partition decree of 22.3.1971, and therefore, the suit for possession is not maintainable otherwise respondents/plaintiffs will take benefit of the partition decree dated 22.3.1971 which has not become final on account of the same having not been engrossed on the requisite stamp paper.

3. I may note that the counsel for the appellant at the outset conceded that appellant/defendant is not claiming title on the basis of adverse possession, and which aspect needs to be mentioned, inasmuch as, the judgments of the courts below show that appellant/defendant had claimed ownership of the suit property on the basis of adverse possession.

4. The first argument urged on behalf of the appellant/defendant of there existing a family settlement is a misconceived argument and has been dealt with by the trial court in para 5 of its judgment (internal page 6 of the judgment) that this plea of family settlement cannot be believed and is of no consequence because no such pleading was raised in the written statement and there is no such issue framed. In view of the fact that there is no pleading and no issue framed as regards the alleged family settlement making the appellant/defendant the owner of the suit property, the courts below have rightly rejected this defence.

5. So far as the second and third arguments are concerned that the final decree of partition cannot operate because the same is not stamped, the said argument is an argument without substance because the respondents/plaintiffs are not seeking to execute the final decree of partition by claiming possession inasmuch as their claim is that the parties to the final partition decree had pursuant to the final partition decree already received possessions of their respective portions, and only for such respective portions of which they had received possession because of implementation of the decree for partition that the suit for possession was filed by the respondents/plaintiffs. Therefore, it makes no difference in law if the final decree for partition was not engrossed on the requisite stamp papers because the respondents/plaintiffs are not seeking execution of the final decree for partition but are claiming possession which each of the parties received pursuant to and after passing of the final decree of partition. Therefore, the suit is not really for execution of the final decree for possession but for seeking possession after receiving possession pursuant to all the parties receiving their respective possessions under the decree for partition dated 22.3.1971.

6. As regards the third argument which is urged on behalf of the appellant/defendant that respondents/plaintiffs had not received possession of the suit property after the decree for partition was passed on 22.3.1971, it needs to be noted that there is a concurrent finding of fact by both the courts below that the partition decree was implemented and each of the party to the decree was put in separate possessions of their portions as per the partition decree. The respondents/plaintiffs also had been put in possession of the suit property and respondent no. 1 had initially allowed her mother-in-law to reside in the suit property and after her death it was occupied by the appellant/defendant as he was a close relative of the respondents/plaintiffs. The courts below have also relied upon the sale deed Ex. PW-2/1 executed by other co-owners on 30.6.1995 with respect to sale of their portion received on partition of the suit property, and which according to the courts below showed that parties had taken possessions of their respective portions as per the partition decree. There is also oral evidence that respondent no.1/plaintiff no. 1 permitted her mother-in-law to stay in the suit property. Therefore the respondent/plaintiff having received possession of the suit property is a finding of fact arrived at by the courts below. Also as rightly held by the courts below that it is not necessary that consent to occupy must be given only in writing when there is closeness of relationship between the parties. A second appeal lies under Section 100 CPC only if a substantial question of law arises. Appreciation of evidence and finding of fact of respondents/plaintiffs having received possession of the suit property is not a substantial question of law more so when two views are possible and courts below have taken one possible and plausible view. I, therefore, hold that the courts below have rightly held that the respondent no.1/plaintiff no. 1 was put in possession of the suit property pursuant to and after the final decree dated 22.3.1971.

7. In view of the above, no substantial question of law arises for this second appeal to be entertained under Section 100 CPC and the same is, therefore, dismissed, leaving the parties to bear their own costs.

MARCH 10, 2014 VALMIKI J. MEHTA, J godara