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2018 Supreme(Del) 1443
IN THE HIGH COURT OF DELHI AT NEW DELHI
VINOD GOEL, J.
Jatinder Khanduja – Appellant
Versus
Jagdish Khanduja – Respondent
RFA No. 865 of 2016 and CM No. 40971 of 2016
Decided On : 14-03-2018
For the Appellants : Mr. Anil Kumar, Mr. Rajbir Bansal.
For the Respondent: Ms. Kamlesh Mahajan.
Headnote:
Gift execution - Gift deed - Execution - Without having partitioned - Effect of - Executant of gift deed has migrated from Pakistan to India - In lieu of his ancestral property in Pakistan, the suit property was allotted to him - Without having partitioned, the property could not have been transferred by way of a Gift Deed.
Gift execution - Leasehold rights - Mutation of - Validity of gift - Mutation in the record has been carried out on the same terms and conditions as laid down in the lease deed executed by original lessee - Property now stands in the names of J.L.K - Mutation has already been sanctioned in favour of plaintiff - Execution of the Gift Deed by late N.L.K - Defendant is not a party to the Gift Deed, has no locus standi to raise objection - It could have been raised only by the executant of the Lease Deed and the Conveyance Deed in favour of N.L.K - Held, ADJ has rightly held that late N.L.K had executed a valid Gift Deed in respect of the property in favour of the plaintiff - Appeal is dismissed.
Gift execution - Property - Ownership - Family settlement - Gift Deed - Nowhere pleaded in WS by defendant that the original document of family settlement was in possession of the plaintiff - Photocopy of the family settlement is an undated document - Written on a blank paper - Unregistered and not even not arised - Original was never produced - Evidence beyond pleadings cannot be looked into and the relief cannot be granted - Held, defendant has failed to establish the execution of the family settlement and prove that he was in occupancy of third floor of the property in question in his own rights as exclusive owner - Trial court has rightly decided the issue against the defendant.
VINOD GOEL, J.
1. Challenge in this appeal is the impugned judgment and decree dated 29.08.2016 passed by the Court of learned Additional District Judge-03, (Central), Tis Hazari Courts, Delhi (in short "learned ADJ") in Civil Suit No. 16493/2016 (Old civil suit no. 63/2016) by which the suit of the respondent/plaintiff for possession of 3rd Floor of property No. 29/152, West Patel Nagar, New Delhi (as shown in red colour in the site plan Ex.PW-1/3) was decreed against his real brother who is the appellant/defendant. The learned ADJ has also restrained the appellant/defendant by a decree of permanent injunction from creating third party interest or parting with the possession of the suit premises in any manner.
2. The brief facts of the case are that the respondent/plaintiff claimed to be the owner of the entire property bearing no. 29/152, West Patel Nagar, New Delhi by virtue of a Gift Deed dated 10.10.1997 executed in his favour by his father late Nand Lal Khanduja, which was duly registered with the office of Sub-Registrar, Delhi. Admittedly, the suit property is consisting of ground floor, first floor, second floor and third floor. The respondent/plaintiff has also applied for mutation of the property and he was informed by the Land & Development Office by letter dated 25.03.2003 about the mutation. It is alleged by the respondent/plaintiff that at the time of construction, he had spent substantial amount towards construction of the house from his funds along with his father. He further alleged that after execution of the said Gift Deed, his father was of the opinion that the respondent/plaintiff should not throw out any of his brothers from the said property during his lifetime and for that reason he allowed his brothers to stay in the property. It is further alleged that in the year 1998, the appellant/defendant, having come to know about the execution of the said Gift Deed, started harassing and creating unnecessary tension in the family, colluding with his other brothers and filing false complaints before the police authorities in order to pressurize their father late Nand Lal Khanduja to gift the third floor of the said property to the appellant/defendant.
3. The respondent/plaintiff sent a legal notice dated 08.09.2004 to the appellant/defendant asking him to handover the physical and vacant possession of the property under his occupancy failing which the appellant/defendant shall be liable to pay the damages and misuse charges w.e.f. 01.10.2004. The respondent/plaintiff received a reply dated 27.09.2004 from the appellant/defendant.
4. The respondent/plaintiff also alleged that the appellant/defendant had filed a suit for partition and another suit for cancellation of the said Gift Deed, which are pending before the court of Additional District Judge, Delhi.
5. The respondent/plaintiff has claimed a decree of possession of 3rd floor of the said property apart from damages/mesne profits @ Rs. 7,500/- per month till the appellant/ defendant handover the vacant and physical possession of the suit premises in his occupancy. The respondent/plaintiff has valued the suit for possession and damages at Rs. 3,15,000/- and for decree of possession at Rs. 3,07,500/- and paid the court fees accordingly.
6. In his written statement, the appellant/defendant has pleaded that the respondent/ plaintiff has no locus standi to file the suit as he has no right, title or interest in the third floor of the said property, which is owned and possessed by him, the respondent/plaintiff has committed the offence of perjury and forgery and is liable to be tried under Section 340 of the Code of Criminal Procedure, 1973 and suit has not been properly valued for the purpose of court fees and jurisdiction and that the value of the third floor is not less than Rs. 10,00,000/- and ad valorem court fees should have been paid at least on Rs. 10,00,000/-.
7. On merits, the appellant/defendant has denied that the respondent/plaintiff is the owner of
