Full Text
HIGH COURT OF DELHI
Decision delivered on: 18.11.2022
CHARAN PAL SINGH & ORS .....Appellants
Through: Mr Hitendra Nahata and Ms Kajol Kumar, Advs.
Through: Mr Shivcharan Garg, Mr Imran Khan, Mr Rohit Kumar and Ms Jahanvi
Garg, Advs.
HON'BLE MS. JUSTICE TARA VITASTA GANJU [Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL):
JUDGMENT
1. This is an appeal directed against the order dated 10.12.2018 passed by the learned Single Judge. 1.[1] The order dated 10.12.2018 was passed by the learned Single Judge concerned two interlocutory applications i.e., I.A.Nos.13033/2018 and 13513/2018. 1.[2] The first interlocutory application i.e., I.A.No.13033/2018 was preferred under Order I Rule 10 of the Code of Civil Procedure, 1908 [in short “CPC”], while the second application i.e., I.A.No.13513/2018 was preferred under Order IX Rule 13 of the CPC.
2. Insofar as the application preferred under Order I Rule 10 of the CPC is concerned, certain applicants therein [who are also the appellants before us i.e., appellant nos.[2] to 9] sought impleadment in the suit, on the ground that they were in possession of the suit property.
3. As regards the application for setting aside the ex-parte preliminary partition judgment and decree dated 24.11.2017 is concerned, the said application was moved by appellant no.1 i.e., the original defendant.
4. The learned Single Judge did not deem it fit, to entertain either of the applications. The rationale provided by the learned Single Judge is contained in the following observations of the impugned order:
5. The record shows, that the suit property was purchased via sale deed dated 07.12.1960 by one Jai Singh and Uday Ram.
6. As noted by the learned Single Judge, the aforementioned purchasers had 50% share in the suit property. 6.[1] This aspect is not disputed by the learned counsel for the parties, who are appearing in the instant appeal.
7. Insofar as the original plaintiffs i.e., the respondents are concerned, they are the wife and sons of Jai Singh.
8. The record shows, that Jai Singh expired on 04.05.1988. 8.[1] It is also not in dispute, that Uday Ram has also expired.
9. Mr Hitendra Nahata, Advocate who represents both the appellant no.1 [original sole defendant before the learned Single Judge,i.e., Mr Charan Pal Singh Koak as also appellant nos.[2] to 9 [the applicants before the learned Single Judge] says that appellant nos.[2] to 9 have been in possession of the suit property, since 1970. 9.[1] For this purpose, Mr Nahata has sought to rely upon the GPA dated 10.02.1970.
10. A perusal of the GPA shows, that it was executed by Jai Singh in favour of one Randhir Singh, son of Ram Lal.
11. It is claimed, that appellant nos.[2] to 9 are the legal heirs of Randhir Singh.
12. Furthermore, a closer appraisal of the said GPA would show, that it was executed by Jai Singh, only to confer, inter alia, the power to manage, control and supervise the suit property. 12.[1] Even according to Mr Nahata, there was no power given to Randhir Singh, to either acquire the right, title and interest in the suit property, or convey/transfer the same in favour of a third party.
13. Mr Nahata, however, says that insofar as appellant nos.[2] to 9 are concerned, they have been in possession of the entire suit property for more than four decades. 13.[1] In support of this plea, Mr Nahata referred to a writ petition, which was instituted by respondent no.1 i.e., Omwati Koak, in which apart from the Municipal Corporation of Delhi (MCD), the original defendant i.e., appellant no.1 was also arrayed as a party. 13.[2] This writ petition was numbered as W.P.(C) No.839/2012.
14. Mr Nahata says, that the burden of this writ petition was that appellant no.1 i.e., the original defendant, was carrying on illegal construction in the suit property.
15. To be noted, in the plaint, a reference has been made to the said writ petition.
16. It has also been brought to our notice, that this writ petition was disposed of on 23.03.2012. 16.[1] The writ petitioner i.e., respondent no.1/Omwati Koak withdrew the said writ petition, reserving her right to approach the MCD for redressal of her grievances. The Court, while permitting the respondent no.1 i.e., Omwati Koak to withdraw the writ petition, granted leave in that behalf.
17. Besides this, Mr Nahata also relies upon photocopies of water and electricity bills to demonstrate, that appellant nos.[2] to 9 are in possession of the entire suit property.
18. It is also Mr Nahata’s contention, that the appellants were not served at the address, at which they were residing. 18.[1] According to Mr Nahata, the appellants were residing at 693/694, Bijwasan, South-West, Delhi, whereas the address given in the plaint was 85, Koak Bhawan, Village Bijwasan, New Delhi-110061.
19. On the other hand, Mr Shivcharan Garg, who appears on behalf of the respondents, says that service was effected on the appellant no.1 i.e., the original defendant. 19.[1] For this purpose, he relies upon the proceedings of 08.09.2016 and order dated 25.10.2016.
20. Mr Garg says, that these orders were not assailed, and it is on the back of these orders, that a preliminary ex-parte decree was passed.
21. As noticed by us hereinabove, the learned Single Judge, in the impugned order, has adopted a different rationale.
22. Mr Nahata says, that the appellant nos.[2] to 9 ought to have been noticed in the suit action, and it ought to have been averred by the respondents, that they were in possession of the suit property.
23. The sum and substance of the arguments advanced by Mr Nahata is, that appellant nos.[2] to 9 have a possessory right in the suit property, and that has fructified as the said appellants, according to him, have been in adverse possession, to the knowledge of the respondents herein. 23.[1] That said, Mr Nahata does concede, that there was no such assertion made with regard to adverse possession in the application filed, both for impleadment, as well as for setting aside the ex-parte decree. 23.[2] Mr Nahata’s explanation is, that in these applications, such assertion was not material.
24. Be that as it may, we have put to Mr Nahata, that if appellant nos.[2] to 9 wish to assert their right of adverse possession, they would have to file an independent action. 24.[1] Mr Nahata says, that the appellant nos.[2] to 9 would have done so, but for the fact that there are certain observations with regard to possession made in the impugned order.
25. Mr Garg, on the other hand, says that the observations with regard to possession are confined to the suit action, which was for partition. 25.[1] In other words, according to him, if an independent action is filed by appellant nos.[2] to 9, they would have to establish that they were in adverse possession, which will be subject matter of trial in any such fresh action.
26. Therefore, the appeal is disposed of with a direction, that if appellant nos.[2] to 9 were to file an independent action, the observations made in paragraphs 13, 22 and 23 of the impugned order will not come in their way. 26.[1] The said appellants i.e., appellant nos.[2] to 9 however, would have to establish, in such action, that they had acquired rights in the property on account of adverse possession.
27. To be noted, insofar as appellant no.1 i.e., the original defendant is concerned, his 50% share of right in the suit property is not in dispute.
28. The appeal is disposed of in the aforesaid terms.
29. Consequently, pending application shall stand closed.
30. Needless to add, if a fresh action is filed by appellant nos.[2] to 9, the observations made hereinabove will not come in the way of the defence, that the respondents may choose to take in such an action.
RAJIV SHAKDHER, J TARA VITASTA GANJU, J NOVEMBER 18, 2022/ aj