ANJU BALA ETC. Vs. MEERA SAXENA

JUDGEMENT

(1.) THIS second appeal is filed impugning the concurrent judgments of the courts below; of the first appellate court dated 15.10.2012 and of the trial court dated 24.7.2012; by which the suit of the appellant/plaintiff for declaration was dismissed. Appellant/plaintiff as per the suit plaint prays for declaration that the consent order dated 25.5.2011 which was passed in Suit No. 456/2010 by the court of Sh. Akash Jain, Civil Judge, Karkardooma Courts be declared void as the same is a fraud upon the appellant, who is the wife of the respondent no. 2 herein, defendant no. 2 in the trial court. The consent order impugned in the present suit was passed in an earlier suit filed by the respondent no. 1 herein,(defendant no. 1 in the trial court) against the respondent no. 2 herein/husband, and as per which consent order dated 25.5.2011 the respondent no. 2/husband was to vacate the property bearing no. 204 -B, Ground Floor, Pocket -I, Mayur Vihar, Phase -I, Delhi -110091. Appellant/plaintiff claims that this order has been obtained in collusion and since will operate against the appellant/plaintiff who is living in this suit property, the same be declared illegal and void.

(2.) THE trial court framed a preliminary issue with respect to maintainability of the suit and decided the said issue against the appellant/plaintiff as the appellant/plaintiff failed to show any right, title and interest in the suit property. Essentially, though the preliminary issue is framed, really the order amounts to either rejecting the plaint under Order 7 Rule 11 CPC or dismissing the suit under Order 12 Rule 6 CPC, because on the admitted facts appellant/plaintiff has no right in the suit property, and hence was held not entitled to the relief prayed for.

(3.) IN the present case the facts are that the suit property is not owned by the husband of the appellant/plaintiff i.e the suit property was not owned by the respondent no. 2. Suit property is owned by respondent no. 1, and who is not even the mother -in -law of the appellant/plaintiff. The respondent no. 1 is the wife of the brother of the father of the husband of the plaintiff i.e the respondent no. 1 is the wife of respondent no.2's uncle. Appellant/plaintiff therefore would have no right whatsoever to claim that the suit property is a shared household in view of the judgment of the Supreme Court in the case of S.R. Batra & Anr. (supra) and the Division Bench judgment of this Court in the case of Shumita Didi Sandhu(supra)