SHRI PRATAP SINGH Vs. RAHUL GUPTA

JUDGEMENT

(1.) By this order I propose to dispose of the appeal filed by the appellant under Rule 4 of Chapter II of Delhi High Court (Original Side) Rules, 1967 against the impugned order dated 14th December, 2010 whereby the learned Joint Registrar has dismissed the application moved by the appellant under Order 1 Rule 10 (2) CPC. A brief narration of the facts is necessary in order to deal with the present appeal: Subject matter of the dispute is a plot No. 39 admeasuring 460 sq. yds. Motia Khan Dump Scheme, Rani Jhansi Road, New Delhi. The said plot was originally allotted by the then Delhi Improvement Trust in favour of late Shri Brij Lal Mehra and late Shri Gurdial Singh some time in the year 1956. Shri Brij Lal Mehra had expired in the year 1960 leaving behind his two sons and one daughter, namely Mr. Om Prakash Mehra, Mr. Roshan Lal Mehra and Smt. Kanchan Suraj Prakash Khanna as his legal heirs, however, both Mr. Om Prakash Mehra and Mr. Roshan Lal Mehra had died in the year 1999 and, therefore, from the branch of Shri Brij Lal Mehra, Smt. Kanchan Suraj Prakash Khanna became entitled to half undivided share in the said lease hold plot. The other co-owner of the plot namely Mr. Gurdial Singh was a bachelor and he also died on 20th October, 1974. He had left behind his brother Shri Rajinder Singh, class II legal heir, therefore, after the demise of his brother, Shri Rajinder Singh had approached the Delhi Development Authority to seek substitution of his name in place of his brother but DDA directed him to first obtain succession or letter of administration from the competent Court of law. Accordingly Mr. Rajinder Singh had applied for the same and had successfully obtained the said letter of administration from the District Judge Delhi vide orders dated 19.12.1979 in probate case No. 193/78. Based on the said letter of administration the mutation of half undivided share was carried out by the DDA in the name of Shri Rajinder Singh. It is also an undisputed fact that the said plot of land was encroached upon by certain encroachers, therefore the possession of the same could never be delivered to the said co-lessees or their successors in interest. So far the branch of late Shri Brij Lal Mehra is concerned there is no dispute between the parties, that Smt. Kanchan Suraj Prakash Khanna is the rightful claimant of his half undivided share in the said plot, but the disputes have arisen with regard to the remaining half share in the said plot.

(2.) The plaintiff in the present suit being CS (OS) 1098/2008, Mr. Rahul Gupta, has filed the suit for declaration, possession and mandatory injunction and he has impleaded Mrs. Kanchan Suraj Prakash Khanna as defendant No. 1 and the DDA as defendant No. 2. A decree of declaration has been sought by Mr. Rahul Gupta, plaintiff in order to get himself declared as the owner of the undivided equal half share of the said plot in question. A decree of possession has been claimed by the plaintiff so as to direct defendant No. 2, DDA to hand over the possession of the subject plot free from all encroachments to the plaintiff and a decree of mandatory injunction to direct DDA, defendant No. 2 herein to execute the perpetual lease deed in his favour and defendant No. 1.

(3.) The plaintiff Mr. Rahul Gupta has claimed his right on the premise that late Shri Rajinder Singh had sold his half undivided share in the said plot in favour of Smt. Darshan Kaur vide agreement to sell and Power of Attorney dated 7th August, 1979, which was duly registered in the office of Sub-Registrar, Delhi. It is also the case of the plaintiff that Smt. Darshan Kaur had further sold the said undivided half share in favour of the plaintiff vide registered agreement to sell dated 13.3.2007 for a total sale consideration amount of Rs. 10 lakhs. Along with the said agreement to sell Smt. Darshan Kaur had also executed a General Power of Attorney and a Will dated 13.3.2007. The claim of the plaintiff in the suit is thus based on said agreement to sell dated 13.3.2007 and other transfer documents executed by Smt. Darshan Kaur.