CR No.3293 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. CR No.3293 of 2009 (O&M) Date of Decision: 28.07.2010 Nathu Ram ....Petitioner Versus Tilak Raj and others ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Gagandeep Singh Sirphikhi, Advocate for the petitioner. Mr. Malkeet Singh, Advocate ... Alok Singh, J. Petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing order dated 18.5.2009 passed by the Civil Judge, Junior Division, Batala, whereby the Executing Court has dismissed the objection filed by the petitioner under Order 21 Rule 97 read with Section 151 CPC. To understand the controversy between the parties, family tree is being reproduced hereunder: - CR No.3293 of 2009 2 Ram Narayan |---------------------------------|----------------------------| | Guro Bawi Bansi Lal (daughter) (daughter) (son) |--------------------| | | Ram Piari Durga Tilak Raj Nathu Ram (Def. No.1) (Def. No.2) Daughter Daughter | | Nirmal Vijay (Def. No.3) (Def. No.4) daughter son-in-law. Tilak Raj son of Bawi, one of the daughters of Ram Narayan, preferred Civil Suit No.359 of 1998 in the Court of Civil Judge Junior Division, Batala, against Ram Piari, Durga, Nirmal and Vijay, seeking a declaration to the effect that the plaintiff is owner of the house marked ABCDEF as shown in the site plan annexed with the plaint. Main ground taken in the plaint by Tilak Raj was that the house in dispute originally belonged to Smt. Guro and her sister Smt. Bawi having been inherited by them from their parents, who had no son. Plaintiff is the son of Smt. Bawi, whereas defendants No.1 and 2 are the daughters of Guro and defendant No.3 is the daughter of defendant No.1 and defendant No.4 is the son-in- law of defendant No.2; Smt. Guro having two daughters i.e. defendant No.1 and defendant No.2 and one son, who has died since long unmarried and husband of Smt. Guro and Smt. Bawi were residing in the joint house i.e. house in dispute. Plaintiff was looking after Smt. Guro and due to love and affection and services rendered by plaintiff, Smt. Guro gave the said portion of house vide document dated 7.3.1993 to the plaintiff, as such the plaintiff is in actual physical possession of the said house. Defendants tried to dispossess the plaintiff forcefully and illegally, hence cause of action arose to the plaintiff to file the suit. CR No.3293 of 2009 3 Defendants claimed the possession from the plaintiff by way of counter claim. Suit of the plaintiff was dismissed, however the counter claim of the defendants regarding possession over the property in dispute was decreed vide judgement and decree dated 31.7.2003. Execution was taken out by the defendants against the plaintiff to take possession over the property in dispute pursuant to the decree dated 31.7.2003. Petitioner who claims to be in possession of the property in dispute resisted the decree under Order 21 Rule 97 CPC saying that Ram Narayan was having three heirs i.e. two daughters Guro and Bawi and one son Bansi Lal. Objector – petitioner claimed to be the son of Bansi Lal. It is further alleged in the objection that pursuant to the decree passed in the counter claim, decree holders are not entitled to dispossess the objector from the property in dispute who is the sole owner of the property. According to Nathu Ram, the original owner Ram Narayan had expired prior to the enforcement of Hindu Succession Act, almost 70 years ago from today. The further case of Nathu Ram - petitioner is that as per ancient Hindu Law, daughters Guro and Bawi did not inherit any property and Bansi Lal inherited property from Ram Narayan and after his death the petitioner is sole owner of the property in dispute. The Executing Court has dismissed objection filed under Order 21 Rule 97 vide impugned judgement, hence this petition. Petitioner in his objection under Order 21 Rule 97 in paragraph 3 has stated that the entire estate of Ram Narayan was inherited by his son Bansi Lal. Paragraph 3 of the objection is being reproduced hereunder: - “3. That the said Ram Narayan has died prior to the partition of the country and his estate was inherited by his son namely CR No.3293 of 2009 4 Bansi Lal in succession. Ram Piari and Durga are the daughters of Guro daughter of Ram Narayan mentioned above and there was another daughter namely Smt. Bawi. The said Bawi was the mother of Tilak Raj plaintiff. Nirmal is the daughter of Ram Piari and Vijay son of Kishori Lal resident of Chharrta, District Amritsar is the son-in-law of Durga daughter of Guro daughter of Ram Narayan.” In reply to the objection, decree holders preferred their reply. Paragraph 3 of the reply to objection is being reproduced hereunder: - “3. That para No.3 of the objection is correct to this extent that Ram Narayan died more than seventy years back. It is denied that his estate was inherited by his son Bansi Lal alone. It is correct that the decree holders are the daughters of Guro daughter of Ram Narayan mentioned above. It is correct that Smt. Bawi was the mother of Tilak Raj. It is correct that Nirmal is the daughter of Ram Piari and Vijay son of Kishori Lal resident of Chharrta, is the son-in-law of Durga daughter of Guro daughter of Ram Narayan.” I have perused the entire reply to the objection filed by the decree holders and am unable to find out any specific denial of the fact that Bansi Lal was not the son of Ram Narayan. It is also not denied in reply to the objection that Nathu Ram is not the son of Bansi Lal. It is also not denied that Ram Narayan had expired much prior to the enforcement of the Hindu Succession Act. Order 8 Rule 5 CPC reads as under: - “5. Specific denial. - CR No.3293 of 2009 5 (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.” From the perusal of Order 8 Rule 5 CPC, I am of opinion that any denial in a written statement or reply should be specific denial. If averment made in the plaint/petition is not denied specifically, then it shall be taken to be admitted. Mere denial or by merely saying not admitted, does not amount to any specific denial. I am of the further opinion that in the absence of any specific denial, it stands proved that Bansi Lal was one of the sons of Ram Narayan and petitioner is the son of Bansi Lal. In view of the undisputed fact that Ram Narayan had expired prior to the enforcement of the Hindu Succession Act, hence on his death, his only son Bansi Lal would have inherited entire estate of Ram Narayan. Any person, who is in possession of the property and has title or right to stay in possession of the property, can resist the decree of CR No.3293 of 2009 6 possession by moving an application under Order 21 Rule 97 CPC and if such an objection is taken, then the same shall be decided by the Court. Since Bansi Lal had inherited property from Ram Narayan and the objector is the son of Bansi Lal, who claims to be in possession of the property in dispute, hence objection filed by him ought to have been allowed by the trial Court, which was wrongly dismissed by the trial Court. Any collusive decree obtained by legal heirs of Guro and Bawi, two daughters of Ram Narayan, does not bind Nathu Ram – objector since he was not a party in that suit and decree. Present petition is liable to be allowed and is hereby allowed. Order impugned is hereby quashed. Petitioner is declared rightful owner of the property in dispute. It is further held that petitioner cannot be dispossessed pursuant to the decree dated 31.7.2003. Execution petition stands dismissed. ( Alok Singh ) Judge 28 .07.2010 sk.