RSA No.240/2008 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment : 25.05.2011 + R.S.A.No. 240/2008 SMT. SHASHI BALA ………..Appellant Through: Mr.T. N. Saxena and Mr. Vipin K. Saxena, Advocates. Versus SHRI RAKESH KUMAR & ANR. ……….Respondents Through: Mr. V Shukla and Ms. Aparna, Advocates. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 1. This appeal has impugned the judgment and decree dated 13.08.2008, which has reversed the finding of the Trial Court Judge dated 31.5.2007. Vide decree and judgment dated 31.5.2007, suit filed by Rakesh Kumar seeking possession of the suit property (Municipal No.559-560, Jain Mandir Gali, Chhota Bazar, Shahdara, Delhi) had been dismissed; the impugned judgment had reversed this finding; suit of the plaintiff was RSA No.240/2008 Page 2 of 6 decreed. 2. The plaintiffs Rakesh Kumar and Mukesh Kumar are the sons of Madan Mohan; the defendant Shashi Bala is the wife of Ashok, predeceased son of Madan Mohan. The case of the plaintiff was bordered on the Will of their father Madan Mohan dated 4.7.1997 (Ex.PW3/1); contention was that Madan Mohan had bequeathed the aforenoted suit property to him by virtue of a Will dated 4.7.1997. The defence of the defendant all along was that this suit property is an ancestral property and it could not have been bequeathed by Madan Mohan; the defendant being the daughter in law of Madan Mohan, she after the death of her husband Ashok had a right in the ancestral property. The defendant had placed reliance upon an earlier judgment rendered between parties i.e. judgment dated 27.9.1999 wherein an application under Order 7 Rule 11 of the Code of Civil Procedure had been allowed and the suit filed by the plaintiff Shashi Bala had been dismissed. This order dated 28.7.1999 had emanated from a suit which had been filed by Shashi Bala against Madan Mohan; this was the suit for injunction; a contention of Shashi Bala was that the suit property was an ancestral property and jointly owned by all the parties including Shashi Bala, who was a co-sharer; on these averments, application under Order 7 Rule 11 RSA No.240/2008 Page 3 of 6 of the Code had been filed by the defendant; the averments made in the said application (page 149 of paper book) have been perused; and plaintiff has clearly averred that the subject matter of the suit is an ancestral property; relying upon a judgment of the Punjab and Haryana High Court reported in AIR 1987 Punjab and Haryana 34 (Jujhar Singh Vs. Giant, Talok Singh) the court had dismissed the suit of the plaintiff on the ground that the proper remedy in such a case would be to seek partition with respect to the subject matter of the suit instead of asking for injunction. Suit had been dismissed. It is these pleadings in this suit which have been heavily relied upon by the appellant to support his submission that the case of the plaintiff himself was that this suit is ancestral property and now he cannot go back on this submission; to support this submission he has relied upon the averments made by Rakesh Kumar in this application under Order 7 Rule 11 of the Code. Perusal of this application shows that no such averment had been made by Rakesh Kumar (present plaintiff); he had sought dismissal of the suit under Order 7 Rule 11 of the Code only on the submissions made by the plaintiff in her plaint. The plaintiff therein (Shashi Bala) had herself contended that this suit property is ancestral property and co- joined by all the parties; this submission of the learned counsel for RSA No.240/2008 Page 4 of 6 the appellant is thus devoid of any force. Record does not substantiate his submission that the plaintiff had ever averred that the suit property is ancestral property. 3. In fact, it is not in dispute that this suit property was originally owned by Kali Charan. This is also clear from the averments made in the plaint to which there is no denial in the corresponding para of the written statement. Kali Charan was not the natural father of Madan Mohan; out of love and affection he had bequeathed this property vide will dated 22.3.1951 to Madan Mohan. Madan Mohan vide registered Will dated 4.7.1997 had thereupon bequeathed this property to the plaintiffs Rakesh Kumar and Mukesh Kumar, his two sons; this will had been proved in the court below; attesting witness PW3 had come into the witness box to substantiate this document. The defence of the defendant all along was that the suit property was ancestral property which could not have been bequeathed by Madan Mohan. This submission of the defendant/appellant is not borne out. Neither in the application under Order 7 Rule 11 of the Code was this ever averred by the plaintiff and neither was this supported by the defendant. Thus, the suit property not being ancestral property and the will (Ex.PW4/1) of deceased Madan Mohan having been adequately proved, it is clear that the RSA No.240/2008 Page 5 of 6 defendant had no right or title in the suit property; she was residing there only with the permission of the plaintiff; her status was that of an unauthorized occupant; she had no right, title in the suit property. The impugned judgment had correctly returned thus finding in favour of the plaintiffs; they were entitled to the decree for possession and damages at Rs.100 p.m., Rs.150 p.m. as electricity charges and Rs.250 p.m. as water charges w.e.f. January, 2000 till delivery of possession. 4. Appeal has been admitted and on 11.11.2009 the substantial question of law had been formulated by this Court : 1. Whether the Appellate Court properly appreciated the evidence of the parties, while accepting the validity of the Will dated 4th July, 1997, or its findings are perverse? 2. Did Madan Mohan Lal had the right to bequeath the entire property which, as per his own admission in the earlier suit, was an ancestral property to the exclusion of the appellant? 5. Judgment relied upon by the plaintiff reported in AIR 1973 Supreme Court 2384, is an undisputed proposition; there is no dispute that the dismissal of the application under Order 7 Rule 11 of the Code amounts to a “decree” under Section 2(2) of the Code. 6. Substantial question of law is accordingly answered in RSA No.240/2008 Page 6 of 6 favour of the respondent and against the appellant. There is no merit in this appeal. Dismissed. INDERMEET KAUR, J. MAY 25, 2011 vld