MST TANA Vs. BADAMO

JUDGEMENT

(1.) APPELLANT -plaintiff no. 1 along with respondent nos. 2 and 4 (plaintiff nos. 2 and 3 respectively) filed a suit for partition and perpetual injunction against the respondent nos. 1 and 3 (defendant nos. 1 and 2) in respect of property bearing no. 3477, Gali No. 4/5, Rehgar Pura, Karol Bagh, New Delhi (for short, hereinafter referred to as the "suit property"). By the judgment and decree dated 8th September, 1980 trial court dismissed the suit, hence, this appeal has been preferred by plaintiff no.1 wherein plaintiff nos.

(2.) AND 3 have been impleaded as respondent nos. 2 and 4 as they chose not to challenge the impugned judgment and decree. 2. Plaintiffs alleged in the plaint that plaintiff no. 1 was daughter and plaintiff nos. 2, 3 and defendant no. 2 were grand children; whereas defendant no. 1 was daughter-in-law of Shri Maman, who died in the year 1948. The pedigree table of Late Shri Maman is as under :-

(3.) DEFENDANT no. 1 filed written statement wherein she took certain preliminary objections to the effect that suit was barred by limitation; suit was undervalued, inasmuch as, insufficient court fee was paid; suit was not maintainable; suit was barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as "The Code"). On merits, it was denied that Late Shri Maman acquired and got built the suit property after taking the lease of land underneath the built up portion from Delhi Improvement Trust in the year 1919. It was alleged that Late Shri Maman was very poor and had no means to acquire the suit property. It was Prabhu, son of Late Shri Maman and husband of defendant no. 1 who had purchased the land underneath the disputed property from Shri Lachhman son of Shri Sadhu and raised construction from his own earnings. Shri Lachhman had taken the lease from the Deputy Commissioner of Delhi. Prabhu took the land on lease for a period of 20 years in the name of his father-Late Shri Maman out of respect for his father. It was alleged that suit property was self acquired property of Late Shri Prabhu who raised the construction from his own funds and earnings. Late Shri Maman had no right, title or interest in the suit property. It was denied that Late Shri Maman had gifted the suit property to his daughters, that is, plaintiff no. 1 and Smt. Dharam Kaur. It was alleged that even if it is assumed that the gift deed was executed the same was void, invalid and illegal since Late Shri Maman had no right to execute the alleged gift deed. It was denied that daughters of Late Shri Maman had been living with him in the suit property. It was alleged that the cause of action, if any, for filing suit for partition arose during the year 1946, inasmuch as, defendants disputed the claim of plaintiffs during Suit No. 285/1986 which was decreed way back on 23rd March, 1948. Appeal, preferred against the said judgment, was decided on 15th October, 1954 but no execution was filed against the said decree of High Court. Execution became time barred on 15th October, 1966, thus, plaintiffs had abandoned their rights. Suit was hopelessly barred by time for the above reason. Defendant no. 1 has been in actual physical possession of the suit property right from the death of her husband Late Shri Prabhu. She never allowed the plaintiffs to enter in the suit property or obtain possession over any part thereof. The possession of defendant no. 1 over the suit property was exclusive open, hostile and continuous, thus, she had become owner by adverse possession. Defendant no. 1 had made additions and alterations in the suit property, inasmuch as, got her name mutated in the municipal records and was paying the house tax, water and electricity bills etc. It is she who had been letting out the different portions of the suit property to tenants and recovering rents. She had also acquired fresh lease hold rights over the plot underneath the disputed property in her own name. It was prayed that suit be dismissed.