IMPORTANT POINT
Provision of Order XII Rule 6, CPC is not mandatory, it is discretionary.
Entitlement to possession does not automatically entitles to damages.

JUDGMENT

M. Y. EQBAL, J.

Leave granted.

2. This appeal by special leave is directed against the judgment and order dated 28.8.2014 of the High Court of Delhi allowing the revision petition preferred by the respondent/plaintiff against the order of the trial court which has dismissed her application in a suit for recovery of possession and damages with respect to a portion of the property being in unauthorized occupation of the appellant/defendant.

3. The factual matrix of the case is that the plaintiff- respondent filed a suit against the defendant/appellant who is her son, for recovery of possession and damages alleging that she had purchased the suit property out of her own fund and she is the absolute owner, but part of the property was under the illegal occupation of the appellant-defendant, who opposed the suit contending that the suit property was a Hindu Undivided Family property having been purchased in the name of the respondent using the funds of his grandfather, father and himself and not purchased by the respondent as she was a housewife having no income. Appellant-defendant further pleaded that though there was a dispute regarding his ownership and possession, the same was settled between all the family members vide compromise deed dated 22.10.1997.

4. The respondent filed an application under Order XII Rule 6 of the Code of Civil Procedure for passing a decree in her favour on the ground that a suit for partition, which had earlier been filed by the appellant on the same ground i.e. that the suit property was a HUF property, had been dismissed by the District Court vide judgment dated 8.9.2003 and affirmed by the High Court vide judgment dated 12.9.2011 and the respondent contended that the same amounted to an unequivocal admission by the appellant that the respondent was entitled to possession.

5. The trial court held that though the judgment dated 8.9.2003 of the District Court and judgment dated 12.9.2011 of the High Court had rejected the plea of the appellant that the suit property was a HUF property, these findings were made in a suit for partition whereas the present suit was filed for recovery of possession and damages. The trial court further held that for passing a decree under Order XII Rule 6 CPC, the defendant had to make an unequivocal and unqualified admission. The appellant herein has not made such an admission regarding his liability to pay the damages claimed by the respondent. The trial court dismissed the application vide judgment dated 7.6.2013.

6. Aggrieved by the judgment of the trial court, the respondent filed a revision petition before the High Court. The High Court while allowing the appeal and decreeing the suit with costs held that the pleas taken by the appellant-defendant regarding the contribution made by his grandfather, father and himself in the purchase of the suit property had been rejected by the High Court vide judgment dated 12.9.2011 and the same will operate as res judicata. The High Court further held that while there was no evidence for holding the suit property to be a HUF property, the title deeds of the suit property and the land records stood in favour of the respondent-plaintiff. The High Court noted that the only new plea taken by the defendant in his written statement was that he was a co-owner vide compromise deed dated 22.10.1997 and held that this plea was barred on the grounds of constructive res judicata having not been raised earlier in the partition suit filed by the defendant. The High Court accordingly set aside the order passed by the trial court and decreed the suit.

7. Hence, the present appeal by special leave by the defendant-son.

8. We have heard learned counsel for the parties. Mr. Sushil Kumar Jain, learned senior counsel appearing for the appellant, assailed the order passed by the High Court manly on the ground that the High Court exceeded its jurisdiction under Section 115 of the Code of Civil Procedure. According to the learned senior counsel there