Mrs Anita Kumari Gupta v. Late Mr Ved Bhushan (Deceased Thr Lrs) & Ors

RAJIV SAHAI ENDLAW, J. MAY 06, 2014 "bs"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th May, 2014. + FAO(OS) 357/2013 & CM No.11998/2013 (for stay) MRS ANITA KUMARI GUPTA ..... Appellant Through: Mr. S.D. Singh & Mr. R.K. Vats, Adv. Versus LATE MR VED BHUSHAN (DECEASED THR. LRS) & ORS ..... Respondents Through: Mr. Sanjiv Kakra with Mr. Atul Kumar & Mr. Sanjeev Mahajan, Advs. for R-1,2,5&6. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns the order dated 9th July, 2013, of the learned Single Judge in CS(OS) No.1093/2011 filed by the appellant/plaintiff, allowing the application of the respondents/defendants under Order VII Rule 11 of the Civil Procedure Code (CPC), 1908 and rejecting the plaint as not disclosing any cause of action. 2. The appeal was admitted for hearing and the parties directed to maintain status quo with regard to the title and possession of "the suit property". Attempts to have the dispute settled amicably did not fructify. We have heard the counsels for the parties. 3. We have at the outset enquired from the counsel for the appellant/plaintiff, as to how the present appeal with the nomenclature of "FAO" i.e. First Appeal against Order is maintainable. Attention of the counsel is invited to the definition of a "decree" under Section 2(2) of the CPC and which is deemed to include rejection of the plaint. It has thus been enquired, whether not the remedy of the appellant/plaintiff is by way of a Regular First Appeal i.e. RFA against such a decree. 4. The counsel for the appellant/plaintiff has invited our attention to the order dated 6th August, 2013 when, while admitting the appeal, the appellant/plaintiff was directed to deposit appropriate court fees in accordance with law. He states that such court fees has since been deposited and in fact the appeal should thus be treated as RFA rather than FAO. 5. The counsel for the respondents/defendants has fairly stated that in view of the court fees having been paid, the nomenclature makes no difference. 6. The suit, plaint wherein has been rejected as not disclosing a cause of action, was filed by the appellant/plaintiff seeking partition of property No.24, Pusa Road, New Delhi, claiming 1/6th share therein and for ancillary reliefs, averring: (i) that the father of the appellant/plaintiff and the respondents/defendants No.1 to 4 and the grandfather of the respondents/defendants No.5&6 was the owner of the said property and he died on 18th December, 1965; (ii) that after the death of father, the property was transferred in the name of the mother who also died intestate on 28th March, 1991; (iii) that the appellant/plaintiff thus had a 1/6th share in the property; (iv) that the appellant/plaintiff though settled abroad, on her visits to India always used to reside in the said property but which is now being denied to the appellant/plaintiff. 7. The respondents/defendants No.1 to 3 & 5 contested the suit by filing written statement dated 25th May, 2011, on the grounds: (a) that it was the mother of the parties and not the father who was the owner of the said property; (b) that the mother had left behind her last Will and Testament dated 8th December, 1988 bequeathing the said property to the respondents/defendants No.1 to 3 and the predecessor-in-interest of the respondents/defendants No.5&6 only; (c) that the respondents/defendants No.1 to 3, 5 & 6 had got the suit property mutated in their names in the records of the Municipal Corporation of Delhi (MCD) vide letter of mutation dated 20th November, 1991; (d) that this mutation was in the knowledge of the appellant/plaintiff; (e) that the respondents/defendants No.1 to 3, and predecessor-in- interest of respondents/defendants No.5 & 6 also applied to the Delhi Development Authority (DDA), being the lessor of the land underneath the property, for mutation in their names on the basis of the Will aforesaid; (f) that DDA required recording of the statements of all the legal heirs including the app