SMT. KAMLESH vs SMT. SUNITA SHARMA,

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 16 February 2024
Judgment pronounced on : 20 February 2024
+ C.R.P. 202/2022 & CM APPL. 53870/2022
SMT. KAMLESH ….. Petitioner
Through: Mr. Zahid Ali and Mr. M.
Shakeel, Advs.
versus
SMT. SUNITA SHARMA ….. Respondent
Through: Mr. Anuroop P.S. & Mr. Vikas
Dudeja, Advs.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

1. This Civil Revision Petition is preferred by the petitioner in
terms of section 115 of the Civil Procedure Code, 1908, who was the
defendant before the learned Trial Court (hereinafter referred as the
„petitioner/defendant”), assailing the Impugned Judgment dated
29.08.2022 passed by the learned Additional District Judge-04, South
East, Saket Courts, New Delhi1 in suit bearing CS No. 936/2018,
whereby suit of the respondent/plaintiff instituted on 08.06.2018 under
Section 6 of the Specific Relief Act, 19632, was decreed.
2. The case of the respondent/plaintiff before the learned Trial
Court was that the property bearing No. TA-33A/2, Tugalkabad

1 Trial Court
2 Act

Extension, New Delhi3 was originally owned by one Mr. Rampal, who
died intestate and the right, title and interests in the same were
inherited by his widow, two sons and three daughters. It was claimed
that there was effected an oral family settlement amongst the legal
heirs and consequent thereto, while the first floor of the suit property
which has been in occupation of the petitioner/defendant, who is the
wife of Mr. Hukum Singh S/o late Sh. Rampal, was left for intact, the
rest of the property comprising of ground, second and third floor
constructed on an area of 28 Sq. Yards was sold to her by the other
legal heirs of deceased Rampal vide Sale documents viz., registered
GPA, possession letter, receipt and Will dated 20.07.2011 registered
on 23.07.2011 for a total consideration of Rs. 10,75,000/-.
3. It was stated that the petitioner/defendant joined with her
husband and filed a suit for permanent injunction and declaration
against other legal heirs of the deceased Mr. Rampal besides her so as
to get the sale documents executed by them in her favour as „null &
void”, which was hotly contested and was eventually dismissed by the
learned Additional Civil Judge, Saket Courts, New Delhi vide
judgment dated 10.01.2018. It is alleged that thereafter the
petitioner/defendant, who was having some matrimonial disputes with
her husband started creating hurdles in her peaceful occupation of the
suit property on the ground floor, second floor and third floor and it
was alleged that she trespassed into her portions of the property by
breaking open the locks on 02.06.2018 and took over illegal
possession and control of the same. Therefore, she filed a suit under

3 Suit property

Section 6 of the Act seeking to reclaim the possession of the suit
property.
4. The suit was contested by the petitioner/defendant inter alia
raising preliminary objections that suit was bad for non-joinder of her
husband, who was a necessary party and her stand was that suit
property was a Coparcenary property inherited from her father-in-law
Mr. Rampal, who died intestate; and that although he did die intestate
it was claimed that her father-in-law had left behind several properties,
which are described in paragraph (3) as under:-

“i. TA-25/A-2, Gali No. 1-2, Tuglakabad Extn., New Delhi
110 019 Area 50 Sq.Yds (Basement+Gr Floor) Presently under the
possession of Mr. Goptal, Brother-in-law of Defendant.
ii. RZ-81/5, Gali No. 5, Tuglakabad Extn., New Delhi 110 019
Area 90 Sq.Yds. (3’d & 4th Floor) Presently under the possession
of Mother-in-law & Sister-in-law (Ms. Poonam) of Defendant.
iii. RZ-517/24, Gali No. 24, Tuglakabad Extn., New Delhi 110
019 Area 50 Sq. Yds. (Basement+Ground+4 floors) Presently
under the possession of Ms. Manju, Sister-in-law of Defendant.
iv. TA- ……, Gali No. 4, Tuglakabad Extn., New Delhi 110 019
Area 50 Sq.yds. Presently under the possession of Ms. Usha,
Sister-in-law of Defendant.”

5. She claimed that since she was having some marital discord
with her husband, her in-laws were annoyed with her, and therefore,
they executed forged and fabricated sale documents so as to transfer
the right, title or interest in other portions of the property in favour of
the respondent/plaintiff, and she claimed that she has always been in
possession of the entire property in her own right; and that the
respondent/plaintiff was not entitled to possession of coparcenary
property acquired by her illegally in collusion with her in-laws as also
her husband.

6. Needless to state that a replication was filed wherein the
respondent/plaintiff refuted the allegations levelled by the
petitioner/defendant and reiterated and reaffirmed the averments of
her plaint. From the pleadings of the parties, learned Trial Court
framed the following issues vide order dated 02.04.2019:

“i. Whether the plaintiff was in possession of ground floor, second
floor and third floor with terrace of the property bearing no. TA-
33A, Tughlakabad Extension, New Delhi? (OPP)
ii. Whether the defendant dispossessed the plaintiff from
ground floor, second floor and third floor with terrace of the
property bearing no. TA-33A, Tughlakabad Extension, New Delhi
on 02.06.2018? (OPP)
iii. Whether the suit is not maintainable for non-joinder of Sh.
Hukam Singh/husband of the defendant as a party to the suit?
(OPD)
iv. Whether the plaintiff is entitled to a decree of possession
in respect of ground floor, second floor and third floor with terrace
of the property bearing no. TA-33A,
Tughlakabad Extension, New Delhi? (OPP)
v. Relief.”

7. During the course of trial, the respondent/plaintiff examined her
husband as SPA holder Mr. Davinder Kumar Sharma, who in his
testimony produced various documents which are Ex.PW-1/1 to PW-
1/26; and she examined PW-2 Shri Yashpal, Assistant Personnel
Officer, who deposed about the installation of electricity connection in
the suit property vide documents Ex.PW-2/1 to PW-2/4 in the name of
the respondent/ plaintiff; and she also examined PW-3 Ct. Manoj
Kumar from PS Govindpuri so as to bring on record lodging of police
complaints vide DD entries that are Ex.PW-3/A and PW-3/B. On the
other hand, the petitioner/defendant came in the witness box and she
was examined as DW-1.

IMPUGNED JUDGMENT:

8. Learned Trial Court clubbed issues No. 1 to 4 and held that
PW-1 duly proved on record the sale documents in her favour dated
20.07.2011 for sale consideration of Rs. 10,75,000/- which are
Ex.PW-1/3 to PW-1/6 while on the other hand DW-1 only made a
bald assertion that Smt. Usha, Smt. Poonam and Smt. Manju, who are
the sisters of her husband sold the other portions in the suit property
without having legal rights. It was held that she was not able to
substantiate as to how and in what manner any fraud had been
committed upon her. It was further held that in terms of judgment
dated 10.01.2018 in suit no. 51544/16, there was rendered a specific
finding that petitioner/defendant was only in possession of first floor
of the suit property and she and her husband failed to substantiate that
they were in possession of ground, second and third floor, which
finding on fact constituted constructive resjudicata.
9. Suffice to state that based on the evidence that electricity
connection had been installed in the name of respondent/plaintiff and
police complaints, which had not been refuted by the
petitioner/defendant, it was found that the respondent/defendant had
been able to prove that the petitioner/defendant had illegally
trespassed into the suit property on 02.06.2018, and thus issues No. 1,
2 and 4 were decided in favour of the respondent/plaintiff and against
the petitioner/defendant.
10. Issue No.3 was also decided against the petitioner/defendant
since the cause of action brought out that she had trespassed into the
aforesaid portions of the property sans her husband. Accordingly, the

suit was decreed and the petitioner/defendant was directed to hand
over the vacant and peaceful possession of the suit property
comprising of ground, second and third floor measuring 28 Sq. Yards
to the respondent/plaintiff as per site plan Ex.PW-2/1 with costs
awarded to the respondent/plaintiff.

GROUNDS FOR REVISION:

11. The impugned judgment-cum-decree dated 29.08.2022 has been
assailed in the present revision inter alia on the grounds that the
learned Trial Court failed to appreciate that the entire suit property had
been given to her by her in-laws as her share out of the ancestral
properties after an oral family partition but as her relationship with her
husband became strained, they reneged on the oral family settlement
and have cheated her by selling different portions of the property to
the respondent/plaintiff; and that the learned Trial Court failed to
appreciate that her husband became entitled to 1/6th share in the
properties left behind by her father-in-law and since her husband is
missing and his whereabouts are not known, she has every right to
protect and claim 1/6th share in favour of her husband; and that the
learned Trial Court erred in appreciating that she had dispossessed the
respondent/plaintiff from the suit property in unlawful manner.
12. It is pertinent to mention at this stage that since civil revision
against an order passed under Section 6 the Act could only be
entertained on a substantial question of law, the following questions of
law have been raised by the petitioner/defendant:

“1. Whether the Ld. Trial Court erred in appreciating that the
respondent in possession of the suit property till 2018 whereas the

petitioner has been in the possession since the other co-parcener
had shifted to their respective properties?
2. Whether the Ld. Trial Court erred in appreciating that the
respondent has been dispossessed from the suit property by the
petitioner?
3. Whether the Ld. Trial Court failed to appreciate that the
respondent was not in possession since he illegally purchased the
suit property from the persons who were not the actual owner of
the suit property?
4. Whether the Ld. Trial Court failed to appreciate that the suit was
time barred as the respondent was never in possession at any point
of time?
5. Whether the Ld. Trial Court failed to appreciate that there was
no any oral or written settlement which make Smt Somvati and
Gopal owner of the respective floors of the suit property?
6. Whether the petitioner had any share in entire matrimonial
properties in absence of the order passed by the Ld. MM in PWDV
case through her husband?
7. Whether in absence of any family settlement the ratio of share of
the petitioner could be determined and without determination of
share of the member of the matrimonial family the share of the
respondent through the documents executed by the other
coparcener is nothing but a cheating to respondent as well as to the
petitioner?
8. Whether the Ld Trial Court erred in proceeding that the
respondent has been dispossessed though the evidence doesn’t
suggest so?
9. Whether the entire property in question is the share of the
petitioner out of entire matrimonial properties?
10. Whether the Ld. Trial Court failed to consider the petitioner’s
position and her possession over the property in question as share?
11. Whether the Ld. Trial Court erred in presuming that the
documents executed by the other family member of the petitioner
got finality because the order dated 10.01.2018 was not challenged
by the petitioner whereas the said order is still under challenge.”

13. On serving of the notice of the present revision petition upon
the respondent/plaintiff, operation of the impugned judgment and
decreed dated 29.08.2022 has been stayed vide order dated 09.02.2023
of this Court. Needless to state that the respondent/plaintiff has

opposed the maintainability as well as merits of the present revision
petition tooth and nail.

ANALYSIS & DECISION:

14. I have given my thoughtful consideration to the submissions
made by the learned counsel for the parties. I have gone through the
entire record of the case including the digitized TCR4. I have also
gone through the written submissions filed by the parties on the
record.
15. First things first, it would be relevant to reproduce Section 6 of
the Act, which goes as under:-

4 Trial Court Record

“6. Suit by person dispossessed of immovable property.—

(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he or any
person claiming through him may, by suit, recover possession
thereof, notwithstanding any other title that may be set up in such
suit.
(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any
suit instituted under this section, nor shall any review of any such
order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to
establish his title to such property and to recover possession
thereof.”

16. A careful perusal of the aforesaid provision would show that if
a person is dispossessed from an immovable property otherwise than
in accordance with due process of law, he/she may file a suit to
recover possession irrespective of any defence of the title to the suit
property that may be set up by the defendant. It is well ordained in

law that the aforesaid provision only applies when the cause of action
is unlawful dispossession from the premises, irrespective of title of the
opposite party and it is limited to seeking relief of recovery of
possession of the premises. Reference can be invited to decision in A.
Subramanian & Anr. v. R. Pannerselvam5
17. In view of the aforesaid proposition of law reverting back to the
instant matter, it would be relevant to reproduce the reasons assigned
by the learned Trial Court while deciding issues No. 1,2 and 4 against
the petitioner/defendant, which read as under:-

5 (2021) 3 SCC 675

“11. The plaintiff has filed the present suit for possession. The
husband of the plaintiff on the basis of SPA dated 07.06.2018 Ex.
PW1/2 entered into witness box as PW-1 and has deposed that the
property bearing no. TA-33A/2, Tughlakabad Extn., New Delhi
was originally owned by one Sh. Ramphal; that the said property
was distributed between his legal heirs as per oral family
settlement and defendant i.e. wife of the one of the son of Sh.
Ramphal namely Sh. Hukum Singh, who was in occupation of first
floor of the said property was given the same and the suit property
was sold to the plaintiff vide registered GPA, possession letter,
receipt and Will all dated 20.07.2011 for total consideration
amount of Rs.10,75,000/-. GPA, Will, receipt, possession letter as
Ex.1/3 to Ex.PW1/6. DW-1 had admitted that the suit property
was lawfully sold by Smt. Usha, Smt. Poonam and Smt. Manju etc.
to the plaintiff however made voluntary statement that the same
was without any right and both the statements did not go together
since property lawfully sold means sold with legal right. DW-1 has
further taken the plea in her evidence that the said documents are
forged and fabricated but has not substantiated how the fraud has
been done. She has not deposed anything about the details as to
who, how, where and when the alleged fraud has been committed.
To prove fraud it must be proved that the representation made was
false to the knowledge of the party making such representation or
that party could have no reasonable belief that it was true. The
party pleading fraud or misrepresentation will have to not only
plead the details but will have to lead evidence in support of such
allegations. A minute scrutiny of the averments set out in the

defence disclose that the allegations are general in nature. Except
for the use of the words “false” and “fabricated”, the defendant has
not pleaded as to each verbal misrepresentation or occasion thereto.
Order VI Rule 4 of the CPC is of a distinct category in law,
requiring pleading with specificity, particularly and precision. The
averments are wanting in the pleadings of the fact of
misrepresentation and fraud which the plaintiff could meet. It is not
the mere use of the general words such a „fraud” or „collusion” that
can serve as a foundation for the plea. Such expression are quite
ineffective to form a legal basis when denuded of a particular
statement of facts which alone can furnish the requisite basis of the
action. The averments made in the written statement in my opinion,
do not set out with reasonable precision, the particulars, so as to
constitute allegations of fraud and misrepresentation. In view of the
same, I came to the conclusion that defendant have failed to prove
their plea of documents being false and fabricated as alleged which
till the balance of probability scale in the favour of the plaintiff.
12. PW-1 has further deposed that the defendant was not
having cordial relations with her husband and she was given
residence orders qua the first floor of the suit property in
proceedings under Section 12 of Domestic Violence Act. The copy
of order is Ex.PW1/18. He has further deposed that thereafter,
defendant alongwith her husband Sh. Hukum Singh filed a suit for
permanent injunction and declaration titled “Hukum Singh vs
Sonwati” against Smt. Sonwati, Gopal, Manu, Usha, Poonam and
plaintiff thereby declaring the documents executed by them be
declared null and void against the plaintiff and with a prayer not to
take the forcible possession of the suit property; that the plaintiff
herein filed written statement in the said suit thereby denying all
the averments of the plaint and stated that the defendant and her
husband were only in possession of first floor and not whole of the
suit property; that the said suit was dismissed by the Court of Sh.
Vikrant Vaid, ACJ, Saket Courts, New Delhi wherein it was held
by ld. Judge that the defendant was not in possession of whole of
the suit property and was only in possession of first floor; that after
the dismissal of the said case the defendant and her associates
began obstructing the passage of the plaintiff into the suit property.
Copy of the plaint, written statement and judgment are
Ex.PW1/19, PW1/20 and PW1/22. None of these fact has been
disputed from the side of defendant.

13. It is not in dispute that the defendant alongwith her husband
filed suit for permanent injunction and declaration against the
defendants herein thereby restraining them from taking forcible
possession of the suit property and further declaring the documents
executed in favour of plaintiff herein as null and void. Vide

judgment dated 10.01.2018 it was held by the Court that defendant
herein is not in possession of the suit property and further the relief
of declaration qua the documents Ex.PW1/19, PW1/20 and
PW1/22 was also declined. The judgment has not been challenged
and hence has attained finality. In the given facts and
circumstances when the relief of the declaration qua the said
documents has been declined by the Court and defendant has failed
to prove her right better than then that of the plaintiff, the plaintiff
has all right to seek possession of the suit property from the
defendant. In Hardip Kaur vs. Kailash & Anr., 193(2012) DLT
168, the Hon”ble High Court of Delhi has observed that “an
agreement to sell alongwith the payment of entire sale
consideration handing over of the possession, execution of the
receipt, affidavit, Will, indemnity bond and irrevocable General
Power of Attorney create “an interest in the property” within the
meaning of Section 202 of the Contract Act and has held that a
right to possession of an immovable property arises not only from a
complete ownership right in the property but having a better title or
a better entitlement/right to the possession of the property than qua
the person who is in actual physical possession thereof”.
14. PW-1 further deposed that on 02.06.2018 plaintiff was
shocked to see that the defendant illegally trespassed in the suit
property by breaking open the locks and took illegal possession of
the same which was under her use, control and occupation; that the
police complaint was immediately lodged in PS Govindpuri. Copy
of the electricity bill and police complaint are Ex. PW1/24 and
PW1/26. Defendant has not specifically denied that she did not
illegally trespassed into the suit property on 02.06.2018. Secondly,
it has already been held by judgment dated 10.01.2018 that
defendant was in possession of only first floor of the property
bearing no. TA-33A/2, Tughlakabad Extn., New Delhi. In view of
the same, it stood established that the defendant dispossessed the
plaintiff from the suit property and she has all right to ask her
possession back.”

18. On a careful perusal of the aforesaid reasoning besides the
testimony of petitioner/defendant, who was examined as DW-1, I am
unable to find any blemish in the decision given by the learned Trial
Court. The reasons are not far to seek. It is brought on the record that
in earlier Suit No. 51544/16 decided vide judgment dated 10.01.2018

between the same set of parties, the petitioner/defendant was held to
be in possession of only first floor of the suit property. It is also in
evidence that on buying the ground, second and third floor of the suit
property by virtue of sale documents dated 20.07.2011, the
respondent/plaintiff got installed an electricity connection in her name
on 13.09.2011 in terms of inspection report dated 14.09.2011. There is
nothing to discern the testimony of PW-2, who was an independent
witness, was tainted and unreliable.
19. Further, it is also proven on the record that the
respondent/plaintiff came to know of alleged trespassing into her
portion of the property by the petitioner/defendant by breaking open
the locks, the respondent/plaintiff lodged a complaint with the police
vide DD No. 31B dated 01.04.2018 and DD No. 21B dated
03.06.2018, which are Ex.PW-3/A and PW-3/B respectively. The said
witness was not cross-examined by the petitioner/defendant despite
affording an opportunity. What further turned the table against the
petitioner/defendant is that in her cross-examination she conceded that
ground, second and third floor portion of the suit property had been
sold by Smt. Usha, Smt. Poonam and Smt. Manju in a lawful manner
but then she corrected herself, voluntarily stating that they sold the
property without any legal right.
20. The petitioner/defendant has been unable to show any document
or lead any evidence that her sisters-in-law were not having any legal
right to dispose of other portions in the property, particularly in the
face of the fact that the father-in-law had died intestate and each one
had inherited 1/6th share in the property. The plea of the learned

counsel for the petitioner/defendant that the father-in-law had left
behind huge properties, which were apportioned amongst other legal
heirs to their satisfaction and she was given exclusive right, title and
interest in the entire suit property by virtue of oral family settlement is
an assertion which has not been substantiated. There is no averment as
to by whom, or who were the parties, or on what date, time and month
the suit property was held to be her exclusive share. There is no proof
that she ever claimed entire suit property to be her own or applied for
mutation of the same in her name with the Municipal Corporation of
Delhi. She has miserably failed to substantiate her defence to the suit,
which otherwise too is outside the scope of section 6 of the Specific
Relief Act.
21. In view of the foregoing discussion, this Court finds no merit in
the present revision petition. The same is accordingly dismissed.
22. The interim order dated 09.02.2023 of this Court stands
vacated.
23. The pending application also stands disposed of.

DHARMESH SHARMA, J.
FEBRUARY 20, 2024
Sadiq