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2008 DIGILAW 251 (DEL)

DALJEET SINGH ANAND v. HARJINDER SINGH ANAND

2008-03-03

S.RAVINDRA BHAT

body2008
Judgment Mr. Justice S. Ravindra Bhat (Open Court) I.A. 5079/2007 1. This is an application by the plaintiff seeking decree based on admission by the defendant. 2. The plaintiff has claimed the following reliefs in the suit: ``(i) Pass a preliminary decree of partition of the property bearing No. B-1/37, Ashok Vihar, Phase-II, Delhi-110052 in equal shares between the parties herein; (ii) Direct an inquiry into the feasibility of a partition by metes and bounds of the property in the suit; (iii) Direct that in case a partition by metes and bounds is not possible, the property be sold and the proceeds be divided between the parties in their equal shares; (iv) Pass an appropriate final Decree and the share of the plaintiff be separated; (v) Costs of the suit be awarded to the plaintiff; (vi) Pass any other or further relief which the plaintiff is found entitled to and which this Honble Court deem fit and proper, in the facts and circumstances of the case`. 3. The reliefs are premised on the defendant and plaintiff being joint owners of the suit property being B-1/37, Ashok Vihar, Phase-II, Delhi-110052, by virtue of Deed dated 15.5.1996, executed in their favour and registered by the Sub-Registrar. The property is a two storeyed residential buidng constructed on a 400 sq. yards plot. The plaintiff alleges that the defendant failed to agree upon a division of the suit by metes and bounds which has necessitated the suit. .4. The application is premised on admission of documents by the defendant. Learned senior counsel for the plaintiff/applicant relied upon the Conveyance Deed dated 15.5.1996 (Ex. P-1); A joint application for mutation (Ex. P-9); Indemnity Bond (Ex. P-10), an affidavit executed by the defendant (Ex. P-11) - all dated 17-6-1996. He also relied upon a property tax return filed in .relation to a portion of the property on 17.3.2006 by the defendant (Ex. P-13). It is thus claimed that the materials on record sufficiently justify the issuance of a decree on the basis of admission. 5. Learned counsel relied upon the judgment of a Division Bench of the Madhya Pradesh High Court in Shikharchand and Ors. vs. Mst. P-13). It is thus claimed that the materials on record sufficiently justify the issuance of a decree on the basis of admission. 5. Learned counsel relied upon the judgment of a Division Bench of the Madhya Pradesh High Court in Shikharchand and Ors. vs. Mst. Bari Bai and Ors., AIR 1974 MP 75 , and emphasized that the expression ``otherwise` in Order 12 Rule 6 indicates that it is open to the Court to base its judgment on statements made by the parties not only in the pleadings but on other materials available on records. 6. The application is resisted by the defendant who has premised the defence on the contents of the written statement. It is alleged, and urged on its behalf that the documents relied upon by the plaintiff have not been denied, but the case set up is that the said were executed fraudulently. 7. Learned counsel for the defendant relied upon the following averments in the written statement: `` He had conveyed to the father that for the purposes of the conversion of freehold to leasehold the presence of not only the father of the parties but also the present Defendant would also be required. He got certain documents signed from the father as well as the present defendant on the ground that the same were required for conversion. Accordingly, the present Defendant accompanied his father to the office of DDA, where the Plaintiff was already present. The father of the parties as also the present Defendant believing that everything would be in order signed at the places, as pointed by the Plaintiff and thereafter, the Plaintiff directed the Defendant to take the father back home so as to not exert him too much, keeping in mind the old age of the father. The Defendant trusting his brother and not suspecting any kind of fraud signed the documents and thereafter came back to home. It is now being revealed from a perusal of the contents of the present plaint as also the conveyance deed filed alongwith the Plaint that the Plaintiff infact got the said property fraudulently transferred in his name and the present Defendant name. It is now being revealed from a perusal of the contents of the present plaint as also the conveyance deed filed alongwith the Plaint that the Plaintiff infact got the said property fraudulently transferred in his name and the present Defendant name. It is a matter of record that no consideration was ever paid by the parties neither the Plaintiff nor the present Defendant to the father of the parties, as alleged in the Conveyance Deed and the plaintiff be put to strict proof of the same. The whole transaction being without consideration is void. Further and in any event, a fraud has been played by the Plaintiff upon the father of the parties, and as such the transaction is liable to be declared void and the conveyance Deed dated 15.05.1996 is liable to be cancelled. It is submitted that the property in question was bought as a plot of land by S. Kulwant Singh Anand, from one Shri Harcharan Singh son of Shri Harnam Singh out of the partnership funds. Since the plot of land was a lease hold property, the owner had sold it by way of power of attorney sale specifically authorizing the S. Kulwant Singh Anand to further sell/transfer the said plot of land. After buying the said plot of land, S. Kulwant Singh Anand constructed a house on the said plot of land out of his own funds. Till date, the property tax of the property is in the name of Sh. Kulwant Singh Anand. Similarly, the electricity and water connections are also in the name of S. Kulwant Singh Anand. It is submitted that the father of the parties, out of natural love and affection, had permitted the Plaintiff and the Defendant to occupy the said house and stay there with their families. The occupation of the property in question by the Plaintiff and the Defendant is a permissive occupation and the constructive possession of the property still remains with the father of the parties, Shri Kulwant Singh Anand.` It was submitted that an overall reading of the above averments show that there is no unambiguous admission which is a necessary prerequisite for an order or decree on the admission under Order 12 Rule 6. .8. .8. There is no doubt that the Court possesses sufficient discretion and flexibility in terms of Order 12 Rule 6 to decree the suit not merely on the basis of the pleadings but even on .statements made by the parties on the basis of documents. That indeed is purport of the expression ``otherwise` occurring in the said provision. However, what has to be decided in this case is whether the admission of the documents and their marking in the evidence itself is sufficient to enable the Court to pass a decree. 9. Now, while considering an application for decree on admission, the Court has to determine whether the admission is unambiguous and is clear and unequivocal. In this case, the defendant has in no uncertain terms disclaimed the genuineness and veracity of the transaction regarding the allegations concerning properties being jointly owned by the plaintiff and himself. The averments indicate fraud was allegedly played upon by him and his father; the averments also are to the effect that the defendant executed certain documents under a mistaken belief. The Court has to keep these in mind and cannot ignore the effect of such pleadings, merely with a view to give effect to provisions of Order 12 Rule 6. Such a ``split vision` is impermissible. The written statement and the other averments have to be taken in totality; and the pleadings have to be considered as a whole. 10. On an overall conspectus of the pleadings, the Court is satisfied that there is no unambiguous or unequivocal admission by the defendant in this case entitling the plaintiff to a decree on admission. In these view, the application is unmerited; it is, therefore, dismissed.