Prema Devi Rastogi v. Bimla Devi Rastogi

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J. October 20, 2008 mm

* IN THE HIGH COURT OF DELHI Judgment reserved on : October 03, 2008 % Judgment delivered on : October 20, 2008 + CM(M) 633/2004 PREMA DEVI RASTOGI ..... Petitioner Through: Mr. Davinder Singh, Sr. Adv. with Mr. Saurabh Tiwari, Advocate VERSUS BIMLA DEVI RASTOGI ..... Respondent Through: Mr. Bharat Sangal, Advocate Mr. R.R.Kumar, Advocate and Ms. Ipsita Borthakur, Advocate RFA 416/2002 BIMLA DEVI RASTOGI ..... Appellant Through: Mr. Bharat Sangal, Advocate Mr. R.R.Kumar, Advocate and Ms. Ipsita Borthakur, Advocate VERSUS PREMA DEVI RASTOGI ..... Respondent Through: Mr. Davinder Singh, Sr. Adv. with Mr. Saurabh Tiwari, Advocate CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. The original suit bearing Suit No.359/95 was filed by the Appellant in RFA No.416/2002, Smt.Prema Devi Rastogi, seeking a decree of partition, declaration and permanent injunction in respect of the property bearing Municipal No.54-A, East Azad Nagar, Krishna Nagar, Delhi (hereinafter referred to as the "Suit Property") against the Respondent in RFA No.416/2002, Bimla Devi Rastogi. 2. For the sake of convenience, we shall be referring to the parties by their nomenclature in the suit. 3. Case set up by the plaintiff was that she and the defendant, who is the wife of the real brother of her husband, had purchased the suit property which was a 'single storeyed building' from one Sh.Devi Chand Khanna on 04.08.1971 vide registered sale deed dated 12.08.1971 for a consideration of Rs.22,000/-. That the parties contributed Rs.11,000/- each for the purchase of the suit property. That since the date of its purchase the entire suit property except one room remained in the possession of the defendant and her family. That the said room remained under the lock and key of the plaintiff and was occupied by the plaintiff and her family for short intervals of time. That on 28.10.1995 the intention of the defendant to raise constructions on the first floor/roof of the suit property came to the knowledge of the plaintiff therefore she was constrained to file the suit seeking partition of the suit property as also to restrain the defendant and her family from raising any construction on the first floor/roof of the suit property. 4. The suit was contested by the defendant who in the written statement took a defence that the plaintiff had no right, title or interest in the suit property as she was a mere benamidar inasmuch as the defendant was the real owner of the suit property having paid the entire sale consideration in respect of the suit property. As regards the factum of execution of the sale deed pertaining to the suit property in name of the plaintiff it was averred in the written statement that 'the execution of the sale deed is however, not denied'. It was further pleaded that after purchasing the suit property the defendant demolished the building and reconstructed the same with her own funds and contributions made by her family. It was pleaded that the claim of the plaintiff that the defendant is attempting to raise construction on the roof of the suit property is false inasmuch as defendant had raised said construction much prior to the filing of the present suit. It was pleaded that the claim of the plaintiff of having possession of the one room in the suit property is false. It was pleaded that the defendant is enjoying continuous, uninterrupted and peaceful possession of the suit property since last 12 years and therefore has perfected her title in the suit property by way of adverse possession. 5. Since a dispute was raised by defendant regarding the date of raising of construction on the roof/first floor of the suit property, the plaintiff filed an application under Order XXVI Rule 9 of the Code of Civil Procedure before the learned Trial Court see