Judgment:
ORDER
A.K.SIKRI,J.
1. Shri Hari Singh is the appellant in the present appeal which is first appeal filed under Section 96 read with Order 41 of the Code of Civil Procedure. He was plaintiff in the Suit No. 862/93 filed by him against the respondents herein. The Suit was for possession and recovery of damages against the defendants/respondents. The Suit was filed by making the averments that appellant is the owner of Property No. 308, Rameshwari Nehru Nagar( Jag Jiwan Niwas), Delhi. According to the appellant he had permitted the defendants to stay in the portion of the Suit premises, shown in yellow colour in the site plan enclosed with the plaint. This permission was granted in view of the fact that defendants are the relations of the plaintiff inasmuch as defendant No.3 is the wife of the younger brother of the plaintiff and the defendants 1 and 2 are the sons of the younger brother of the plaintiff (late) Sh.Bishan Dayal. The Suit was contested by the defendants/respondents herein wherein the plea of co-ownership was taken. It was averred that during the year 1947 Smt. Parwati, Bishan Dayal and Hari Singh came to India as refugees and occupied this house in dispute. The house is not self-purchased property of the plaintiff. It was a property belonging to rehabilitation department. Being head of the family Smt.Parwati requested the department to allot the house in the name of Shri Hari Singh being eldest son, Shri Bishan Dayal paid Rs.1016/- as cost of this house being co-owner. After death of Shri Bishan Dayal defendant No.3 also became its co-owner. The defendants are residing as co-owners since 1949 and not as licensee.
2. On the basis of pleadings, following issues were framed by the trial Court:
i. Whether the plaintiff has a cause of action and locus standi to file this suit? OPP.
ii. Whether the suit with the present form is maintainable? OPP
iii. Whether the suit is within limitation? OPP.
iv. Whether the defendants are licensees/or co-owners in the property? OP parties both.
v. Whether the plaintiff is entitled to recovery of damages from the defendants? OPP.
vi. Whether the suit is bad for non-joinder of necessary parties? OPD.
vii. Whether the property was joint family property if so, its effect? OPD.
viii. Relief.
3. Thereafter evidence was led. Arguments heard and the learned trial Court passed impugned judgment and decree dated 21st November, 1998 dismissing the Suit of the plaintiff/appellant herein. The Suit has been dismissed primarily on the ground that the plaintiff is not the exclusive owner of the property in question and it is joint family property. Issues No. 4 and 7 were, thereforee, decided in favor of the respondents/defendants and against the appellant.
4. It is an admitted case between the parties that the Deed of Conveyance dated 31st March, 1967, in respect of the Suit property, is executed by the Government in favor of the appellant. It is duly registered with the Sub-Registrar, Delhi. In fact license deed for tenement plots under the Cheap Housing Scheme was executed in favor of the appellant by the Government which was followed by deed of conveyance dated 31st March, 1967. thereforee it cannot be disputed that the appellant is the recorded owner. However, the learned trial Court held that apart from appellant, his mother and brother also became the owners in view of the definition of 'purchaser' contained in the said lease deed. This definition is as under:
'The expression 'purchaser' used in these presents shall include, in addition to the said, his lawful heirs, successors, representatives, assigns, transferees, lessees and any person or persons in occupation of the said property.'
5. The learned trial Court held that the defendants were occupiers at the time of Conveyance Deed, and thereforee, they would become co-lessee along with the plaintiff. The learned trial Court also observed that earlier to the purchase of this property in the year 1967, all the defendants had been residing in this property whereas the plaintiff had been shown out of possession since the possession had been claimed from the defendants. The learned trial Court has also referred to certain judgments to the effect that where a possession is not with the recorded owner and no proof of payment of consideration have been given by the recorded owner, such a transaction will be sham and in case of a sham transaction, Benami Transactions (Prohibitions) Act, 1988 will not apply.
6. It may be mentioned at this stage that the defendant/respondent No.3 had filed a suit in the court of District Judge for partition of this very property impleading appellant as defendant. This Suit was decided by judgment dated 11th April, 1991 by Shri H.R.Malhotra, learned Additional District Judge. By the said judgment, the plaint was rejected under Order 7 Rule 11(d) holding that in view of the provisions of the Benami Transactions (Prohibitions) Act, 1988 such a Suit was not maintainable. The learned trial Court in the impugned judgment has referred to the aforesaid decision to hold that since the said Suit was for partition only and no question of title was involved, judgment would not come in the way of the respondents herein and would not disentitle the respondents to take the plea of co ownership. It has also been observed in the impugned judgment that in the aforesaid Suit decided on 11th April, 1991 no issue was framed on the question of title or as to who are the owners and co-owners of the property and since point of co-ownership was not raised and no findings were given on that point, the defendants/respondents were not barred from taking the plea of co-ownership in the present Suit.
7. Mr. S.K.Bhalla, learned counsel appeared on behalf of the appellant. However, nobody appeared on behalf of the respondents although the matter had been appearing in the Regular List for quite sometime. Arguments of the appellant were heard on 8th January, 2001. To give a chance to the respondents, matter was shown as part heard on 9th January, 2001 as well. However, on this date also, nobody appeared, and thereforee, no option was left but to reserve the judgment.
8. Learned counsel for the appellant argued that the findings of the trial Court were erroneous on facts and the trial Court wrongly interpreted the term 'purchaser' in the lease deed. His submission was that learned trial Court wrongly observed that appellant was out of possession at the time when the lease deed was registered in favor of the appellant. It was further submitted that merely because the defendants were also residing in the Suit property, with the permission of the appellant, at the time of execution of the lease deed they would not become occupier or 'persons in occupation' as contained in the expression 'purchaser' defined in the lease deed. In support of this submission, he referred to the judgment of this Court in the case of Kundan Lal v. UOI & Ors. : 18(1980)DLT470 . In support of his proposition that sale deed in his favor was final, he relied upon the judgment of this Court in the case of Riaz Ahmad & Ors. v. UOI & Anr. : AIR1974Delhi151 .
9. We have considered the submissions of the appellant and have also gone through the record. It may be stated that the case of the appellant before the trial Court was that he came to Delhi in the year 1947 and occupied the Suit premises and started residing therein in 1999 his mother and brother joined him and started residing with him in the Suit premises. Since he was the allottee of the Suit premises, license deed was executed in his favor followed by lease deed and merely because the defendants were also residing there with his permission would not make them 'occupiers' of the Suit premises. The learned trial Court has not adverted to this aspect at all and proceeded on wrong presumption that appellant was not in possession of the Suit premises and it is the defendants who were in possession of the Suit premises in the year 1967 when the lease deed in question was executed by the Government in favor of the appellant. This is clear from the following observations:
'It is also a fact that earlier to the purchase of the property during 1967, all the defendants had been residing on this property whereas plaintiff has been shown out of possession since the possession has been claimed from the defendants.'
10. Thus only because Suit for possession is filed, the learned trial Court presumed that defendants were in possession of the Suit property and appellant was out of possession. This is not correct as in the plaint itself, the plaintiff has mentioned that defendants had been residing in portion shown in yellow colour. The site plan of the Suit property in question is shown in yellow colour as well as red colour which portion is in the possession of the plaintiff. It is one room tenement with open courtyard and shown in red colour which is in possession of the appellant. Beyond that is a room and verandah covered with cement sheet is constructed and shown in yellow colour which is in possession of the respondents.
11. Thus it was not the case of the appellant that he was out of possession. Merely because he filed a Suit for possession in respect of yellow portion, the trial Court presumed that the plaintiff was out of possession little Realizing that the Suit for possession was only in respect of yellow portion of the property. In so far as payment of consideration of Rs.1,016/- as sale price of the Suit premises is concerned, the lease deed itself mentions that this amount was paid by the appellant. thereforee the outcome of the entire case would depend upon the definition of 'purchaser' in the lease deed. Merely because respondents were allowed to stay in the premises with the permission of the appellant and they were staying there at the time of execution of the lease deed, whether they would become the 'purchaser' in view of the aforesaid definition? This question has been answered in negative in view of the judgment of this Court in the case of Kundan Lal (supra). The relevant portion of that judgment reads as under:
'11. What is the meaning of 'occupation'? Mr.Johnson construed the word so broadly as to include in it all peaceful occupation, whether by any right or merely as a licensee or as a member of the family of the rightful occupier. If Mr.Johnson or the other Officers acting under the Act were given the power to finally decide the meaning of 'occupation' as used in Rules 30 and 31, the error in its interpretation committed by them would be an error within jurisdiction, the remedy against which would only be appeals and revisions under the Act and not by way of a separate suit.
12. The following reasons show that the word 'occupation' in Rules 30 and 31 was not used in such a wide sense as to apply to any person who is living on the property, provided that he is not a trespasser. Finally, the definition of 'allotment' in Section 2(a) of the Administration of Evacuee Property Act is as follows:
''allotment' means the grant by a person duly authorised in this behalf of a right to use or occupation of any immovable evacuee property to any other person, but does not include a grant by way of lease.'
The word a 'allotment' in this definition means occupation as of right. A person duly authorised by the Act must grant a right to use to a person before the later can be said to be in occupation of the property. It is clear that this definition can apply only to an allottee like Kundan Lal or Rukmani Devi. It cannot apply to Moti Ram, who is living on the property merely as the husband of Rukmani Devi but has no right of his own to occupy the property.
13. Secondly, Section 19 of the Act gives power to carry or cancel a lease or allotment to the Managing Officer in the following words: 'the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person'. It is significant to note that a person is said to occupy a property under an allotment, while he holds it under a lease. Section 19, thereforee, points to the meaning of 'occupation' as being occupation under an allotment.
14. Thirdly, Rule 22 creates a right in favor of the allottees by requiring that acquired evacuee property below the value of Rs.10,000/- 'shall ordinarily be allotted'. Such a right is not created in favor of all displaced persons whether or not living on the property. It is created only in favor of such displaced persons as are in occupation of the property. If the word 'occupation' were to be so widely construed as to include every person living on the property, all the members of the families of the allottees would be included in it. The language of Rules 30 and 31 does not show that members of the families of the allottees were to be considered as being in occupation. If they are included, then it would be impossible to know who is in possession of the largest portion of the property. The same portion of the property would also be occupied by the whole family and one would not know who is occupying how much. Further, there must be some reason why the right of being allotted the property exists in favor of the displaced persons occupying the property. The only reason can be that already the property has been allotted in the sense of Section 2(a) of the Administration of Evacuee Property Act, 1950 to persons who are thereforee, to be considered as occupying the property. It is for this reason that the word 'occupation' can apply only to 'occupation' of allottees but not of all the members of their families. We are fortified in this view by the Full Bench decision of the Punjab High Court in Smt. Jamna Bai v. Union of India (1965) 67 P.L.R. 394.'
12. We are also not convinced with the reasoning given by the learned trial Court that the transaction in question namely execution of lease deed by the Government in favor of the appellant was a sham transaction. How the Court could dub the execution of lease deed by the Government in favor of the appellant as sham. Relying upon the judgment of Supreme Court in the case of Custodian of Evacuee Property, Punjab v. Jafran Begum : [1967]3SCR736 , this Court has held in the case of Riaz Ahmad (supra) that a sale of property forming part of the compensation pool or any order refusing to set aside the sale cannot be challenged in Civil Court on the ground that the sale was collusive or was not properly published or conducted. This was also a case governed by Displaced person (Compensation and Rehabilitation) Act.
13. Since the lease deed in question cannot be treated as sham one, the reliance by learned trial Court on various judgments to the effect that Benami Transactions(Prohibitions) Act, 1988 would not be applicable is of no use. The trial Court was also not right in ignoring the judgment dated 11th April, 1991 passed by Shri H.R.Malhotra, learned Additional District Judge, Delhi in rejecting the plaint of the respondent No.3 under Order 7 Rule 11(d) holding that such a partition suit was barred in view of Section 4 of the said Act. The said Suit was filed by respondent No.3 for partition, naturally on the allegation that she was co-owner of the property. While rejecting the plaint, the Court held that it was not open for her to plead co-ownership in view of the fact that property stood in the name of the appellant. thereforee when such plea of co-ownership was not held to be admissible to the respondent No.3, how respondent No.3 could take this plea in the present Suit, after the said judgment, is not understandable. The learned trial Court clearly fell in error in deciding so. The judgment dated 11th April, 1991 rendered by Shri H.R.Malhotra, learned Additional District Judge in Suit filed by the respondent No.3 became final as it was not challenged. The decision would operate as rest judicata.
14. In view of the aforesaid discussion, we are of the opinion that findings of the learned trial Court on issues No. 4 and 7 are not correct in law. We hold that defendants/respondents are not co-owners in the Suit property. It is not joint family property but appellant/plaintiff is the exclusive owner of the property in question. Defendants/respondents were residing therein as licensee with the permission of the appellant/plaintiff. In view of this discussion, the findings of the learned trial Court on issues No. 1, 2, 4 and 6 are also erroneous and are hereby set aside. These issues are decided in favor of the appellant/plaintiff.
15. Although the defendants/respondents are held to be in unauthorised occupation and appellant/plaintiff is entitled to possession, keeping in view the relationship between the parties, we are not inclined to award any damages to the appellant/plaintiff on this account. The Suit of the appellant/plaintiff is accordingly decreed for possession. Defendants/respondents are directed to give possession within three months. However, if possession is not given within this period, the appellant/plaintiff would be entitled to damages at the rate of Rs.500/ from the date of this judgment and decree passed in this appeal.
Relief:
16. The result of the aforesaid discussion is that the Suit of the appellant/plaintiff is decreed. The appellant/plaintiff shall be entitled to possession and decree of the portion of the premises shown in yellow colour in the site plan attached to the plaint being the part of the property No.308, Rameshwari Nehru Nagar (Jag Jiwan Niwas), Delhi. Decree be prepared accordingly.