Sushovanpal vs Sharmistha Pal @ Sharmistha … on 23 July, 2018

CM No. 28645/2018 (Exemption)

Exemption allowed subject to just exceptions

CM stands disposed of.

RFA No.563/2018 Page 1 of 12
RFA No.563/2018 & CM Nos. 28643/2018(stay) & 28644/2018 (U/s
151 CPC)
1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant no.1 in the

suit, impugning the Judgment of the Trial Court dated 15.5.2018, by

which the trial court has decreed the suit for partition filed by the

sister of the appellant, with respect to the 50% ownership interest in

the property bearing no.40/205, Chitranjan Park, New Delhi. Whereas

the appellant was the defendant no.1, the defendant no.2 in the suit

was the mother of the appellant/defendant no.1 and the plaintiff, the

defendant no.2/mother supported the case of the respondent no.1/

plaintiff for partition of the suit property. In fact, the aged mother in

her written statement filed as defendant no.2 in the suit has leveled

grave charges of her mistreatment by the appellant/defendant no.1/son,

and has prayed that the partition suit be decreed, as per the ownership

of the property existing in terms of a Lease Deed dated 15.6.1992 of

DDA giving joint ownership rights in the suit property to the

defendant no.2/respondent no.2/mother and the father of the

appellant/defendant no.1 and respondent no.l/plaintiff late Sh. Shayam

Sunder Pal, the husband of the respondent no.2/defendant no.2.

RFA No.563/2018 Page 2 of 12
Partition was claimed only with respect to the 50% interest as 50% of

the remaining interest was already sold to a third person/buyer.

2(i) That the suit property was leased by a Perpetual Lease

Deed by the DDA in favour of Sh. Shayam Sunder Pal (husband)and

the respondent no.2/defendant no.2/Smt. Sudha Pal (wife) is an

undisputed fact. This document being the Lease Deed giving joint

ownership rights in the property to Sh. Shayam Sunder Pal and Smt.

Sudha Pal, is dated 15.6.1992, and this document has not been

challenged by the appellant/defendant no.2. I have gone through the

written statement filed by the appellant/defendant no.1 along with the

counsel for the appellant/defendant no.1 in order to examine the plea

of the appellant/defendant no.1 raised before this Court that though

the Lease Deed was in the joint names of the mother and the father,

the mother was not the half owner and that the father was the sole

owner because the Lease Deed was executed only because of a policy

of DDA for giving a displaced person a property jointly with his wife.

What was argued by the appellant/defendant no.1 before this Court,

(for the first time) dehors any such specific pleadings of the

appellant/defendant no.1 in the trial court as regards the date and

RFA No.563/2018 Page 3 of 12
number of a DDA policy, that though the Lease Deed dated 15.6.1992

was in the joint names of the mother Smt. Sudha Pal and the father Sh.

Shayam Sunder Pal, but Smt. Sudha Pal was not the co-owner of the

property and that the father Sh. Shayam Sunder Pal was the sole

owner of the property inasmuch as the father being a displaced person

from East Pakistan, he was to be the sole owner of the suit property

which was allotted to the father as a displaced person, however the

Lease Deed dated 15.6.1992 was executed by the DDA in favour of

Sh. Shayam Sunder Pal and Smt. Sudha Pal because of a policy of

DDA. As already stated above, the written statement of

appellant/defendant no.1 does not refer to any specific policy by its

date and number which required the lease deed to be executed in

favour of displaced person only with the wife of the displaced person.

The appellant/defendant no.1 therefore cannot for the first time in this

appeal raise this plea before this Court, and this is all the more so

because no policy of DDA was proved by the appellant/defendant no.

1 during the course of leading of evidence by the appellant/defendant

no. 1.

Source: Indian Kanoon

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