Lt. Col. Raj Kumar & Anr. v. Ram Kumar Aggarwal & Ors.

1. This Second Appeal under Section 100 of the CPC impugns the judgment and decree dated 6th January, 2018 [in RCA No.30/2016 (New No.61345/2016) of the Court of Additional District Judge-12, Central] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellants against the judgment and decree [dated 18th July, 2012 in Suit No.1821/2008 (Unique Case ID No.0241C0581832007) of the Court of Additional Civil Judge (North)] of dismissal of the suit filed by the appellants/plaintiffs against the respondents/defendants.

2. The appellants/plaintiffs, by the said suit, sought a declaration that the appellant/plaintiff no.2 Alok Kumar, who is the son of appellant/plaintiff no.1 Raj Kumar, was the owner of flat no.10A, Supriya Apartment, Pocket A-4, Paschim Vihar, New Delhi and a mandatory injunction directing the respondents/defendants to execute the requisite documents for transfer of the flat in favour of the appellant/plaintiff no.2. Further, reliefs were sought, of permanent injunction restraining the respondents/defendants from dispossessing the appellants/plaintiffs from the flat and from creating any 2018:DHC:4891 third party interest in the flat aforesaid.

3. The case of the appellants/plaintiffs in the plaint was,:i) That the father of the appellant/plaintiff no.1 and the respondents/defendants no.1 to 4 was the owner of the said flat. ii) That as per the desire of the said father, the appellant/plaintiff no.1 and the respondents/defendants no.1 to 4 agreed that the flat, after the demise of the said father, be owned by the appellant/plaintiff no.2, being the grandson. iii) That the respondents/defendants no.1 to 4 also executed No Objection Certificates in that regard. iv) However the respondents/defendants no.1 to 4 subsequently failed to execute the documents of transfer.

4. I have enquired from the counsel for the appellants/plaintiffs as to how the Suit Court, on the basis of pleas aforesaid, even if proved, could have declared the appellant/plaintiff no.2 to be the owner. Admittedly, the paternal grandfather of the appellant/plaintiff no.2 was the owner of the flat. It was/is not the case that the paternal grandfather of the appellant/plaintiff no.2 left any Will bequeathing the said flat to appellant/plaintiff no.2. In the absence of any Will, on demise of paternal grandfather of the appellant/plaintiff no.2, the flat devolved on the appellant/plaintiff no.1, and respondents/defendants no.1 to 4, being his natural heirs. The only claim in the plaint was of a No Objection Certificate having been executed by the respondents/defendants no.1 to 4 for transfer of flat in name of appellant/plaintiff no.2. It has been enquired from the counsel for the appellants/plaintiffs as to how a No Objection Certificate constitutes a document of title.

5. The counsel for the appellants/plaintiffs, at this stage, states that he has just now been instructed by the appellants/plaintiffs present in the Court that the paternal grandfather of the appellant/plaintiff no.2 had nominated the appellant/plaintiff no.2 with respect to the said flat, in the records of the Ravindra Cooperative Society, which had allotted the said flat to the paternal grandfather of the appellant/plaintiff no.2. It is further stated that in terms of such nomination, a family settlement was also arrived at.

6. A perusal of the plaint in the suit, from which this appeal arises, however shows the plea of the appellants/plaintiffs to have been:i) That after the demise of the father, the appellant/plaintiff no.1 and the respondents/defendants no. 1 to 4, being his heirs, acquired title in the said flat and mutually agreed that the flat should be transferred in the name of appellant/plaintiff no.2. ii) It was further agreed that the respondents/defendants no.3 and 4, being the married daughters, shall not claim any right, title or interest in the property. iii) It was yet further agreed that the flat would be valued and the appellant/plaintiff no.1, being the father of the appellant/plaintiff no.2, will pay 1/3rd of the value of the flat to the respondents/defendants no.1 and 2. iv) That the value of the flat was assessed at Rs.15,00,000/- and the appellant/plaintiff no.1 paid Rs.5,00,000/- each to the respondent/defendant no.1 and respondent/defendant no.2 towards their share and on receipt of which, the No Objection Certificates were executed.

7. The plea of nomination and a family settlement, as is now being sought to be urged, has no foundation or basis in the plaint and what is pleaded is relinquishment by respondent/defendants no.3&4 of the share inherited by them in the flat, in favour of appellant/plaintiff no.1 and respondents/defendants no.1&2 equally, making them 1/3rd owner each of the flat and, a commercial transaction, whereunder the respondents/defendants no.1&2 had agreed to transfer their 1/3rd share each in favour of the appellant/plaintiff no.2 for consideration.

8. There is no averment in the plaint, of relinquishment by the respondents/defendants no.3&4 of their 1/5th share each in favour of appellant/plaintiff no.1 and respondents/defendants no.1&2 equally, in accordance with law i.e. by a registered document. In the absence of the same, the appellant/plaintiff no.2 could not be declared owner. Similarly, agreement pleaded, of respondents/defendants no.1&2 having agreed to transfer their 1/3rd share each in favour of appellant/plaintiff no.2 for consideration, also does not constitute the appellant/plaintiff no.2 owner. The remedy of the appellant/plaintiff no.2 for failure of respondents/defendants no.1&2 to abide by their agreement, was to sue for specific performance and not for declaration of ownership.

9. The suit was thus misconceived in law and ought not to have occupied the time of the court for eleven years and should have been dismissed at the threshold.

10. The counsel for the appellants/plaintiffs states that the appellants/plaintiffs be granted liberty to take appropriate remedies.

11. However, on enquiry as to under which law is such liberty required, no answer is forthcoming.

12. This Court cannot, to the prejudice of the respondents/defendants, grant any permission. All that can be observed is, that if the appellants/plaintiffs, under law are entitled to take any remedies, they would be so entitled and in defence to which the respondents/defendants shall have all defences available to them in law. Dismissed.

RAJIV SAHAI ENDLAW, J. AUGUST 06, 2018 Ak..