Gopi Chand v. Geeta Devi & Ors

RAJIV SAHAI ENDLAW, J.

APRIL 29, 2020 'pp'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 29th April, 2020 + GOPI CHAND ..... Appellant Through: Mr. Prem Kumar Sharma, Adv. Versus GEETA DEVI & ORS. ....Respondents Through: Mr. Basant Kumar Gupta, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 29th April, 2015 in RCA No. 50/2011 of the Court of Additional District Judge-01 (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 21st July, 2011 in Suit No. 927/2006 of the Court of Civil Judge (West)-2] of dismissal of suit filed by the appellant for (i) declaration that the appellant is entitled to 1/4th share in property bearing no. B-532 Madipur, JJ Colony, New Delhi – 110063; (ii) partition of the aforesaid property and separation of 1/4th share of the appellant; and (iii) injunction, restraining the respondents/defendants from alienating any portion or otherwise creating third party interest in the said property. 2. This Second Appeal came up first before this Court on 17th November, 2015 and thereafter on 12th January, 2016, 8th February, 2016 and 9th February, 2016 when notice hereof was issued, but without indicating / recording the substantial question of law which arose for adjudication. The order dated 28th September, 2016 records that the respondents had been served, and vide the same order, trial court record was also ordered to be requisitioned. The appeal was thereafter adjourned from time to time but the orders of none of the said dates also record the substantial question of law, which is the sine qua non to the maintainability of the Second Appeal, arising for consideration herein. 3. The appeal came up before the undersigned on 13th July, 2018 when the counsels were heard and the trial court and first appellate court record received perused. However the judgment intended to be dictated in open Court on the same day remained to be dictated as I was called to the Full Bench and the matter adjourned to 16th July, 2018. However while so adjourning, it was recorded 'even otherwise, it appears that the appeal is entitled to be allowed and the counsel for the respondents is granted an opportunity to by the next date, consider the possibility of settlement'. On 16th July, 2018, the following order was passed: "1. None appears for the respondents. 2. However, one lady gets up from the bench at the rear and states that her advocate Mr. Basant Kumar Gupta is unwell. 3. On enquiry, she states that her name is Geeta. 4. The counsel for the appellant states that he recognizes the said lady as respondent no.1. 5. The counsel for the respondent no.1, after the order dated 13th July, 2018, cannot avoid the hearing. 6. The respondent no.1 has been informed in vernacular that she should make her advocate appear tomorrow i.e. 17th July, 2018, else, this Court will proceed to decide the appeal. 7. List tomorrow i.e. 17th July, 2018." On 17th July, 2018, none appeared for the respondents in spite of waiting and the file sent to the chamber for dictating the judgment which is being pronounced now. 4. The appellant/plaintiff, on 17th April, 2006 instituted the suit from which this Second Appeal arises, impleading his brother Hem Chand, sister Meera Devi and widow of a pre-deceased brother namely Geeta Devi as defendants thereto. Subsequently children of Geeta Devi namely Yogesh Kumar, Hemant Kumar and Lokesh Kumar were also impleaded as defendants to the suit. It was the case of the appellant/plaintiff in the plaint, that (a) his father Sh. Laloo Ram, vide letter dated 25th November, 1968 of the Delhi Development Authority (DDA) under the Juggi Jhopri Settlement Scheme was allotted plot of land admeasuring 25 sq. yards bearing no. B-532, Madipur, JJ Colony, New Delhi – 110063 and raised construction comprising of two rooms etc. thereon and was residing ther