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
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
Source: Indian Kanoon