Vijesh Chadha & Anr v. Rajindra Chadha

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. NOVEMBER 06, 2008 dharmender

i.2 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order: 06.11.2008 + RFA 404/2007 & CM No.10091/2007 VIJESH CHADHA & ANR. ..... Appellant Through: Mr.Pramod Ahuja, Adv. versus RAJINDRA CHADHA ..... Respondent Through: Mr.M.M.Kalra, Adv. 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.(Oral) 1. Delay in filing the appeal is condoned. CM No.10091/2007 is allowed. 2. Heard learned counsel for the parties. 3. The appellants who are the son and daughter-in-law of the respondent have suffered a decree of possession and mesne profits against them. 4. The case of the respondent was that she was the owner of property No.U-6 and U-4 West Patel Nagar and that she had permitted her son and her daughter-in-law to occupy a portion on the second floor shown red in the site plan annexed with the plaint. She stated that her son and daughter-in-law started misbehaving with her and made life fairly miserable for her, compelling her to required them to move out of the said premises. 5. By a notice dated 7.11.2004, she requested them to vacate the premises in their occupation/possession. They did not do so and hence she had no option but to sue for possession and mesne profits. 6. The defence taken by the appellants was that the mother was the registered owner of only property No.U-6 West Patel Nagar. They stated that the same was acquired by the mother with the ancestral funds i.e. funds of the grandfather of appellant No.1. Thus, the appellants denied the right of the mother to seek possession. 7. We note that the appellants merely denied the ownership of the mother with respect to U-4 West Patel Nagar, New Delhi in the pleadings without stating as to who was the owner thereof. 8. On the pleadings of the parties following five issues were settled on 9.11.2005:- "1. Whether the defendants are occupying the premises in dispute as a licencee? OPP 2. Whether the plaintiff is entitled to claim relief of possession, as prayed for? OPP 3. Whether the plaintiff is entitled to claim damages. If so, at what rate and from what period? OPP 4. Whether the property had been purchased from out of the ancestral funds of the Hindu Family for the residence and benefit of family members. If so its effect? OPD 5. Relief." 9. It would be important to note that no issue was got settled whether the mother was not the owner of property No.U-6 West Patel Nagar. From a perusal of the issues it is apparent that the issue which was got settled was, whether the subject property has been purchased from out of the ancestral funds. 10. It does happen that many a times a plea is raised in the written statement but at the time of settlement of issues the same is not pressed. It is important to note that in the instant case appellants never requested the learned Trial Judge to re-settle the issues or re-frame issue No.4. 11. From the evidence led it is apparent that parties went to trial on the understanding that the defence taken was that the mother was a mere name lender of the properties and that the same was purchased from out of the ancestral funds. 12. Before analyzing the evidence, on the issue at hand, it is impossible to note that though the property had two municipal numbers the same is conceptually and physically a single entity property. 13. On the issue of property being purchased benami; the onus of proof and how the same has to be discharged; we had penned a decision on 20.10.2008 disposing of RFA No.784/2003 Satish Kumar vs. Prem Kumar & Ors. In paras 14 to 19 of the said decision we had culled out the law relating to a plea of benami and in particular when the plea is raised by a close relation. We had noted as under:- ""14. The law relating to onus of proof of a property being benami and discharge of said onus was first expounded by the Federa